author: Mr. Justice Jones

text:
    New Erie Coal Company, Appellant, v. H. McMullen & Sons et al., appellees.
    Gen. No. 7,574.
    1. Statutes — legislative intent as aid to construction. It is a primary rule in the construction of a statute that the intention of the legislature is to be ascertained and given effect.
    2. Statutes — construction to avoid absurd consequences. If absurd consequences result from a particular construction of a statute that construction will be avoided if the statute will reasonably permit of a different construction.
    3. Statutes — construction of remedial statute. A remedial statute should be construed so that it may accomplish the purposes intended by the legislature.
    4. Mechanics' liens — allegations of bill to enforce lien for rental of machinery used by public contractor. Allegations of a bill to enforce a lien under Cahill’s St. eh. 82, 23, for the rental of machinery for use by a hard road contractor, that are confined to its rental and use for a particular road, will be taken as true under demurrer, and a question that the machinery may have been used in other work for which no lien can be claimed in the cause cannot arise under the pleadings.
    5. Mechanics’ liens — right to lien for rental of machinery used by public contractor. A claim for rental of machinery used by a contractor in the construction of a hard road is a lienable thing under Cahill’s St. ch. 82, 1f 23, which provides that a person furnishing machinery to a contractor for a public improvement shall have a lien against the funds due the contractor for his work.
    Appeal by plaintiff from the Circuit Court of Kankakee county; the Hon. Arthur W. DeSelm, Judge, presiding.
    Heard in this court at the April term, 1926.
    Reversed and judgment entered for appellant.
    Opinion filed February 6, 1928.
    C. M. Clay Buntain and Adams & Hawley, for appellant.
    Anker C. Jensen, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.

Appellant filed its bill against appellees to enforce a lien under section 23, chapter 82 of the Revised Statutes, Cahill’s St. ch. 82, ¶ 23, for the rental of a crane used by H. McMullen & Sons, in the construction of a hard road in Kankakee county. A demurrer was sustained and a decree was entered dismissing the bill for want of equity. An appeal is prosecuted from that decree.

H. McMullen & Sons entered into a contract with the county of Kankakee for the construction of a hard road in that county. The bill of complaint alleges that appellant, New Erie Coal Company, agreed to furnish the contractor a certain crane, to be used in and about the construction of such road and other work pertaining thereto, and that the crane was used by the contractor in the construction of the road, and that the use of the crane entered into and became a pa.rt.of the road so constructed. The only question in this case is whether appellant’s claim for the rental of the crane is lienable under said section 23 of the Lien Act.

The parties have stipulated that if this court holds the bill of complaint states a cause of action, a judgment shall be entered in favor of appellant and against the several appellees, adjudging that appellant be paid the sum of $1,217.20 out of the moneys, orders, warrants and funds designated in the original bill.

Appellees contend that the “Lien Act” is in derogation of the common law and that when strictly construed will not afford a lien in.the case at bar. Section 23 as amended in 1919 (Laws of 1919, p. 642), Cahill’s St. ch. 82, ¶ 23, provides: “Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for any county, township, school district, city or municipality in this State, shall have a lien on the money, bonds or warrants due or to become due such contractor under such contract.”

Shorn of eveiything inapplicable to the facts in this case, the language of the section would read, “Any person who shall furnish machinery to any contractor having a contract for public improvement for any county shall have a lien. ” It is a primary rule in the construction of a statute that the intention of the legislature is to be ascertained and given effect. (People v. Price, 257 Ill. 587.) It is the settled law of this State that no lien can be had under section 23 for the purchase price of machinery sold a contractor for use on public work. (McMillan v. Joseph P. Casey Co., 311 Ill. 584.) The question here involved is whether or not a claim for rental of machinery used in the construction of a hard road is a lienable thing under the statute. Since sales are not included in its provisions, then to say that the statute does not embrace rentals and the value of the use of machinery would be to wholly nullify its plain provisions and leave it meaningless. If absurd consequences result from a particular construction of a statute that construction will be avoided if the statute will reasonably permit of a different one. (People ex rel. Sergel v. Brundage, 296 Ill. 197.)

It is insisted by appellees that there can be no lien under section 23 except for materials or labor, or things which become a constituent part of the improvement. McMillan v. Joseph P. Casey Co., supra, is relied upon in support of this contention. In that case the Appellate Court for the Third District (231 Ill. App. 422) held that machinery sold the contractor by the claimants did not become a part of the completed improvement. There was no claim that any portion of it was used up or injured in work upon that improvement. That court reversed the decree of the circuit court and remanded the cause, because no proof was made of the value of the use of the machinery in constructing the improvement. On petition for rehearing, the court filed an additional opinion, stating that the decree of the circuit court had been reversed to enable claimants to introduce evidence to show what supplies and materials had gone into and formed a part of the improvement, or had been used up and consumed together with the value of the use of the machines and materials used about the improvement but not consumed. The Appellate Court set aside its former judgment and entered judgment in favor of one of the parties for the amount due for expansion joints used in the improvement. The Supreme Court affirmed the judgment of the Appellate Court and in its opinion, said: “There was no attempt to show the value of the use of or injury to the machinery, equipment, appliances or material by the two appellants, except the 4500 feet of expansion joints which became a part of the improvement, and the claim therefor was properly allowed. ’ ’ The issue in that case was whether a lien could be had under section 23 for machinery sold a contractor having a contract for public work and not whether a lien may exist for the rental or the use of machinery used in such work.

Section 23 was also construed in Alexander Lumber Co. v. City of Farmer City, 272 Ill. 264. In that case the circuit court decreed a lien in favor of several creditors of a contractor who constructed a sewer for the city. One of the claims was for the use of an engine and pump and some insignificant items; another was for pipe furnished for use in carrying water to the mixing box, where concrete was mixed. A small part of one claim was for work in repairing machinery and tools. Another claim was for lumber which did not become a part of the completed sewer, but was left in the trenches where it was used for shoring or other purposes for the protection of the men at work and also for the protection of the sewer. Some of it employed for other purposes was used up by the contractor in the work.

The decree of the circuit court was reversed by the Appellate Court (Municipal Engineering & Contracting Co. v. City of Farmer City, 193 Ill. App. 457). On appeal to the Supreme Court the judgment of the Appellate Court was reversed and the decree of the circuit court was affirmed.

In Standard Oil Co. v. Vanderboom, 326 Ill. 418, the Supreme Court reviewed both the Alexander Lumber Co. case and the McMillan case, and held there was nothing in the McMillan case in conflict with the Alexander Lumber Co. case. The court said it is probably true that some language was used in the McMillan case which casts doubt upon the construction given to section 23 in the Alexander Lumber Co. case, but such language was not necessary to a decision in the McMillan case, because the value of the use of the machinery in making the improvement was not proved in that case.

All three of the cases cited distinguish between the provisions of and the remedies afforded by sections 1 and 23, Cahill’s St. ch. 82, ¶¶ 1, 23, and it is unnecessary to repeat those discussions here. The Supreme Court has held that section 24 (now section 23) is a remedial statute. (Standard Oil Co. v. Vanderboom, supra; Young v. Jones, 180 Ill. 216.) That section gives no lien upon the improvement but gives a lien to the subcontractor on the money, bonds or warrants due the contractor. The fund devoted to the payment of the work was brought under the control of the court and subject to whatever decree might be finally made. (West Chicago Park, Com’rs v. Western Granite Co., 200 Ill. 527.) No rights of the State are prejudiced or infringed upon. The only person affected is the contractor who owes money to some person for furnishing such materials, etc. (Standard Oil Co. v. Vanderboom, supra.) A remedial statute should be construed so that it may accomplish the purposes intended by the legislature. (Honore v. Wilshire, 109 Ill. 103; Chicago, B. & Q. R. Co. v. Dunn, 52 Ill. 260.)

It was held in the Standard Oil Co. case that gasoline, oil and grease furnished a contractor, necessary for use in operating motor-driven appliances and machinery used in the construction of a public highway •for the State, are lienable, although they, did not become a part of the completed improvement. The bill of complaint in the case at bar alleges the necessity of the use of a crane in the construction of the road. It would be wholly impracticable to attempt the building of modern concrete highways, pavements, sewer systems, and other public improvements without the use of machinery in their actual construction. Such machinery supplants the human labor that would otherwise be required. The magnitude of many public undertakings is such that- to depend upon their accomplishment by human hands alone would be farcical. The march of progress requires their expeditious completion. Modern practices require divers combinations of the human labor element with that of various tools and machines. It is. unquestionable that claims for such human labor are lienable. Can it be doubted that a party working with his own pick or shovel, his own team and wagon, or his own crane, on a tonnage, yardage or per diem basis, for a contractor on a public improvement would have a lienable claim for such work? The use of a crane in putting material in place enters into the construction of the improvement as much as human labor could if engaged in the same work and the use of the crane becomes as much a part of the improvement as though such work was performed by human hands. The legislature made provision by section 23 for the remuneration of parties furnishing the use of such necessary machinery to a contractor. The intention of the legislature is to be gathered not only from the language of the act, but also from the reason and the necessity for the enactment and the objects and purposes to be attained by it. (Fowler v. Johnston City & Big Muddy Coal & Mining Co., 292 Ill. 440.)

Appellees urge that the crane in question may have been used in other work, and that no lien can be claimed in this cause for such use. The allegations of the bill are confined to its rental and use for the particular road in question, and, under the demurrer, those allegations must be taken as true. No questioh of any other use can arise under the pleadings. We think the allegations of the bill are sufficient to bring the claim of appellant within the provisions of section 23 and it was error for the court to sustain the demurrer and dismiss the bill for want of equity.

Under the stipulation filed in this court, it is ordered that the decree of the circuit court be reversed; that appellant have a lien on the moneys, bonds or warrants due or to become due to the appellees composing the partnership of H. McMullen & Sons from said county of Kankakee for the construction of the road in question ; that judgment be entered in this court in favor of appellant in the sum of $1,217.20 against the appellees, Harry McMullen, Harry McMullen, Jr., and Jefferson McMullen, copartners, doing business under the firm name and style of H. McMullen & Sons; and it is further ordered that appellees Charles B. Astle, treasurer of the county of Kankakee, Illinois, Henry J. Groenewoud, county clerk of said county, Luther B. Bratton, chairman of board of supervisors of said county, and Frank M. Enos, county superintendent of highways of said county, in their respective official capacities, and their successors in office, execute, issue and pay to appellants, warrants to said amount, in satisfaction of said lien, payable out of the funds due or to become due said H. McMullen & Sons under said contract.

Judgment of the circuit court is reversed and judgment entered in this court.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Dora McDaniels, Appellee, v. Western & Southern Insurance Company, Appellant.
    1. Appeal and error — presumption that objection to admission of evidence was properly overruled. It will be assumed on appeal that an objection to the admission of a life insurance policy in evidence, that it was not the policy described in a bill of particulars, was properly overruled, where the bill of particulars is not in the record or abstract.
    2. Insurance — defense to action by beneficiary named in rider but not in policy. In an action by the beneficiary named in a rider to a life insurance policy payable to the personal representative of the insured, the defense that there is no promise in the policy to pay the said beneficiary is not aided by a contention that the company will defend, when suit is brought by the administrator, on the ground the insured had cancer when the policy was issued, since such defense would also be available in the case at bar.
    3. Insurance — payment of industrial policy without administration. It is the policy of the law, where possible, to enforce payment of industrial insurance policies, containing the usual facility clause, without the necessity of administration.
    4. Insurance — determination of person “equitably entitled’’ to payment of industrial policy. In determining who is the person “equitably entitled” to receive payment of an industrial life insurance policy containing a facility clause permitting the company to pay any person appearing to it to be equitably entitled thereto by reason of having incurred expense or obligation on behalf of the insured, the insurer must be governed in making its choice by equitable principles approximating at least those recognized by the courts.
    5. Insurance — implied promise to pay beneficiary named in rider but not in policy. The law implies a promise on the part of the insurer to pay the amount of an industrial life insurance policy to the beneficiary named in a rider, although there is no promise in the policy to pay said beneficiary, it appearing that the beneficiary was so designated with the knowledge and consent of the insurer, that the beneficiary paid the premium, and that a facility clause in the policy permitted the insurer to pay any person equitably entitled thereto by reason of having incurred expense or obligation on behalf of the insured.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.

      Whitnel & Browning, for appellant.
    G. C. Borders, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant issued an industrial policy of insurance upon the life of appellee’s aunt for the sum of $165. Appellee caused her aunt to make application for the insurance and paid all of the premiums until the death of the insured. The policy was issued on July 6,1925, and the insured died August 31, 1925. This suit was begun before a justice of the peace on September 7, 1926, more than a year after the death of the insured.

The policy provides that, in consideration of the payment of the weekly premium during the continuance. of the policy, appellant will pay upon receipt of satisfactory proof of death of the insured, made upon blanks furnished by the company, and the surrender of the policy and receipt book, the amount of insurance stipulated. It contains a facility clause as follows: ‘6 The Company may make any payment or grant any non-forfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to the Company to be equitably entitled thereto by reason of having incurred expense or obligation on behalf of the insured, or for the insured’s burial; and the production by the Company of a receipt signed by any or either of said persons, or other proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and all claims under this policy have been fully satisfied.”

Printed on the policy is the following: “Important Kotice: If a claim arises under this policy, claimant should personally call at the District or Branch Office of the Company designated on the premium receipt-book and there give notice of the claim, deliver the policy and premium receipt-book only to the Company’s representative. The Company pays all proper claims immediately on receipt of satisfactory proof of death at its Home Office, and there is no necessity for help in collecting nor for the preparation of claim papers. Time and money will always be saved by dealing direct with the Company through its authorized representatives. ’ ’

Upon the issuance of the policy it was delivered to appellee with a receipt book by the agent of appellant who took the application. A few days after the delivery of the policy the same agent procured from the superintendent of appellant a blank rider to be attached to the policy in question. He then and there told the superintendent that the said rider was to be attached to the policy in question. The agent took the rider to the insured, procured her signature thereto and witnessed the same and delivered it to appellee. The rider is a printed form addressed to appellant and reads as follows: “The undersigned, insured under policy No. 6,112,228 in the above Company, hereby authorizes the said Company to pay the amount of insurance due under said policy to Dora McDaniels, my niece. It is agreed that this authorization is not to vary in any way or alter the terms and conditions contained in said policy, especially the ‘ Facility of payment, ’ provision therein. ’ ’ (The Facility of Payment clause as hereinabove quoted is then set out in full.) The rider was signed by the insured and witnessed by appellant’s agent. Below the signatures is the following printed statement: “This form is to be retained by the policy holder and attached to the within mentioned policy. Do not return this form to Home Office, except when claim is made on the policy.”

The record discloses that appellant- moved the court for a rule on appellee to file a bill of particulars, but there is no showing as to the ruling of the court thé'reon. Presumably a bill of particulars was filed. When appellee offered in evidence the policy and the rider thereto attached the only objection made by appellant was that it was not the policy "described in the bill (evidently referring to the bill of particulars). The bill of particulars is not in the record or the abstract and for that reason we must conclude that the objection was properly overruled. Appellant offered no evidence tending in any way to prove a defense. At the conclusion of all the evidence appellant moved the court to direct a verdict in its favor. The motion was denied and instruction refused, to which ruling of the court appellant then and there excepted. Thereupon appellee moved for a directed verdict for $165 and the motion was allowed and the jury so instructed. To the ruling of the court in that regard no exception was taken by appellant.

Appellant, therefore, is in the position of having acquiesced in the action of the court in directing a verdict in favor of appellee. In this state of the record we think it is very doubtful, to say the least, if appellant is in a position to question the ruling of the court in refusing to direct a verdict in its favor. ■ We thiuk it unnecessary, however, to determine that question.

Under the undisputed evidence in the record it is quite apparent that the insured fully intended that appellee should have the proceeds of this policy. While appellee was not named as béneficiary in the application or the policy, yet appellant’s superintendent furnished its agent with a blank rider "knowing that it was to be filled out by the insured and attached to the policy. Up to the time the rider was delivered to appellee she had paid the premiums on the policy and continued to do so until the" death of the insured." Appellee was clearly designated by the insured as the beneficiary and this was done with the knowledge and consent of appellant. Upon the death of the insured appellee promptly furnished the necessary proof of death. She held the policy and the receipt book. She was not only the designated beneficiary, but she was a person equitably entitled to payment of the insurance by reason of having incurred expense or obligation on behalf of the insured.

Appellant insists that there is no promise in the policy to pay appellee and by reason thereof she cannot recover. The contention is that appellant did not contract to pay anyone other than the personal representative. Appellant contracted that it would pay the amount of the insurance upon receipt of satisfactory proof of death of the insured made upon blanks furnished by the company and upon surrender of the policy and receipt book. The important notice indorsed upon the policy informed appellee that if a claim arose upon the policy she should call at the office of appellant and give notice of the claim and deliver the policy and premium receipt book only to the company’s representative. It also informed her that the company paid all proper claims immediately on receipt of satisfactory proofs of death. The blank rider informed her that the same was to be retained and attached to the policy and told her not to return it to the home office except when claim was made on the policy.

No suggestion is made by appellant to the effect that appellee failed to give proper notice and proof of death. After she had done so appellant refused to pay and about a year later she filed this suit. There is no pretense that appellant has exercised its option under the “Facility” clause. It has now held the insurance money more than two years after it was due. Its only contention is that it did not promise to pay appellee and that the cause of action is in the administrator of the insured. There is no showing that the insured had any estate or property whatsoever aside from this insurance. Appellant suggests in argument that when a suit is brought by the administrator it will then defend on the ground that the insured had a cancer at the time the policy was issued. We know of no reason why appellant could not have made that defense in the case at bar if there is any basis for it. The suggestions of appellant come with poor grace after such a lapse of time. It should be the policy of the law, where possible, to enforce such policies of insurance without the necessity of administration, Wallace v. Prudential Ins. Co., 157 N. Y. S. 1028. “The company should have no right to select a beneficiary, particularly if it contravenes the expressed wish of the insured. The option contained in the policy should be exercised by the company only where the insured has failed to make a choice.” Foryciarz v. Prudential Ins. Co. of America, 95 Misc. 306, 158 N. Y. S. 834. Where a beneficiary was named in the policy but there was no promise to pay him and there was the usual facility clause, the assignee of the named beneficiary was allowed to recover where the insurer had not paid anyone. Williams v. Metropolitan Life Ins. Co. (Mo.), 233 S. W. 248.

In permitting the insurer to elect to whom it shall pay, the courts will require, not only good faith on the part of the insurer, but the exercise of sound judgment in making payment to the proper claimant, in order that no great injustice shall be done to the estate of the decedent and to those having legitimate claims. No freedom of arbitrary or capricious choice is given the insurer, nor license to act carelessly and without proper inquiry into the facts. In determining who is the person “equitably entitled” to receive payment, the insurer must be governed in making its choice by equitable principles approximating at least those recognized by the courts. Zornow v. Prudential Ins. Co., 210 App. Div. 339, 206 N. Y. S. 92.

In the case at bar, we are of the opinion that the law implies a promise on the part of appellant to pay appellee the amount of the policy in question. The court did not err in refusing to direct a verdict in favor of appellant and the judgment is affirmed.

Affirmed.


text:
    East St. Louis Junction Railroad Company, Appellee, v. Armour & Company, Appellant.
    1. Negligence — in not fastening metal piece attached to pipe as question for jury. Where the owner of a tank house maintains an overhead pipe leading therefrom to the center of a railroad switch track to convey oils to tank cars, and places a piece of metal upon the pipe to ' prevent rain from dripping into the opening of a car being loaded, whether the owner was negligent in not fastening the metal piece, which was blown from its resting place by the exhaust from a locomotivo engine and struck a railroad employee, was a question of fact for the jury.
    2. Master and servant — negligence m handling engine causing un- . usual exhaust as question for jury. Where an unfastened piece of metal is attached to an overhanging pipe to prevent rain from dripping into the opening of a tank car on a switch track being filled from the pipe, whether there was negligence in the handling of a locomotive engine to cause an unusual exhaust to dislodge the metal piece that struck a railroad employee was a question of fact for the jury.
    3. Workmen’s compensation — admissibility of evidence of absence of negligence by employer in its action against third person to recover compensation paid employee. In an action by a railroad company under Cahill’s St. ch. 48, 1 229, to recover from the owner of a tank house the amount it has been required to pay as workmen’s compensation to a railroad employee who was struck by an unfastened metal piece attached to an. overhanging pipe by the owner to prevent rain dripping into a tank car.on a switch track being filled from the.pipe, and which metal . piece was dislodged by the exhaust from a locomotive engine, evidence that the switch track was usually wet and greasy, which tended to show there was no unusual exhaust, is admissible, especially where the owner insists the exhaust was the result of railroad negligence.

      4. Commerce — moving of partly loaded ear not ready for transportation to another state as mterstate commerce. A railroad company and‘a switchman are not engaged in interstate commerce at the time of an injury to the switchman from the alleged negligence of a third person, where the switchman was moving a partly loaded ear to expedite the moving of intrastate ears, although the partly loaded car was to be transported to another State when loaded.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.
    Wheeler & Oemke, for appellant.
    McGlynn & McGlynn, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant has a packing plant at East St. Louis. It has a switch track upon its premises and there is a tank house near by. Overhead pipes lead from the tank house to a point about 20 feet above the center of the said track. Those pipes are used for conveying melted tallow and grease from the tank house to tank cars upon the said track. When a car is to be loaded it is so placed that the dome thereof is below the end of the pipe.- About three or four weeks prior to July 19, 1924, appellant’s assistant foreman at the tank house placed a piece of metal about 4 feet long and 2 feet wide and weighing 40 or 50 pounds upon and across the pipes aforesaid for the purpose of preventing rain water from dripping into the open dome of tank cars while being loaded. The piece of metal aforesaid was not fastened in any way.

On July 19, 1924, a tank car was in position to be loaded and was partly filled. When the car was loaded it was to be shipped to some point in Texas. On the day aforesaid, appellee’s switching crew entered upon the sidetrack for the purpose of taking out some cars that were hack of the car that was being loaded. When the engine came within a few feet of the car that was being loaded it came to a stop. Harvey B. Curry, a switchman in the employ of appellee, then examined the coupling apparatus and signaled the engineer to come ahead. When the engine started the exhaust therefrom blew the piece of metal from its resting place and it fell upon and injured Curry.

Curry applied for compensation under the Workmen’s Compensation Act and the Industrial Commission allowed him $17 per week for a period of 250 weeks. Appellee and Curry were held to be subject to the Workmen’s Compensation Act and appellee then sued appellant, under section 29 of said Act, Cahill’s St. ch. 48, ¶ 229, to recover the amount it was required to pay Curry. The trial resulted in a verdict and judgment for $4,250.

Appellant contends that there was no negligence on its part. We are of the opinion that it was a question of fact for the jury to determine whether or not it was negligence for appellant’s foreman to place the piece of metal upon the pipes without being fastened. It was in a position where the exhaust from engines might cause it to fall and the danger arising there-, from should have been guarded against.

Appellant contends that the exhaust from the engine was the proximate cause of the injury to Curry. It is contended that if appellee was guilty of negligence which caused the injury there could be no recovery. That is true under the provisions of the statute, but we find no evidence in the record that would warrant the conclusion that there was negligence in the handling of the engine which caused an unusual exhaust. That was a question of fact for the jury and in the state of the proof we cannot say that they reached an erroneous conclusion.

Appellant contends that the court erred in admitting evidence to the effect that the switch track was usually wet and greasy. We think the evidence was competent, especially in view of the fact that appellant was insisting that the exhaust from the engine at the time in question was the result of negligence on the part of appellee. The evidence simply tended to show that there was no unusual exhaust at the time in question.

Appellant contends that Curry and appellee were engaged in Interstate Commerce at the time of the injury and that by reason thereof appellee was not entitled to recover. The only purpose the switching crew had in moving the tank car that was partly loaded was to take some other cars from that switch track to other places. The moving of the partly loaded car was not for the purpose of transporting it in interstate commerce as it was not yet ready to be transported. It simply stood between the engine and the other cars which were to be moved. There is no claim that any of the other cars were then in interstate commerce, or that they were to be used for that purpose. The case at bar is very much like Roach v. Chicago, R. I. & P. Ry. Co., 227 Ill. App. 240. In that case certiorari was denied by the Supreme Court. Appellant insists that the case at bar should be controlled by Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114. In that case a loaded car had been shipped from another State and had been placed for unloading. Before it was completely unloaded it became necessary to remove some cars back of it. It was held that the car was still in interstate commerce.

In the case at bar, the car in question had not yet started in interstate commerce and was not ready for transportation. We cannot agree with appellant’s contention that appellee and Curry were engaged in interstate commerce at the time of the injury.

No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


text:
    Dora Wade, Appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, Appellant.
    1. Pleading — necessity that plea in abatement should-give a better writ. A plea, in abatement averring t’-at' the defendant is neither a corporation nor a partnership, but is a voluntary unincorporated association of railroad trainmen, and that it cannot be sued as a legal entity, is defective in failing to give a better writ in not stating the names of members to be made defendants.
    2. Pleading — necessity of, entitling plea as of a term of court. A plea in abatement that is not entitled as of any term of court is demurrable.
    3. Pleading — necessity that plea to jurisdiction of person be pleaded in person. A plea to the jurisdiction of the person of a voluntary unincorporated association must be pleaded in person and not by attorney.
    4.. Fraternal beneficiary associations — when member does not elect to abandon membership. A member of a lodge of an association of railroad trainmen by failing, after the revocation of the charter of the lodge, to apply for transfer to some other lodge, as required by the rules, does not thereby elect to abandon his membership, where, because of his participation in an unauthorized strike, an application for transfer could not be granted under the -rules. ■
    5. Fraternal beneficiary associations — when plea relating to payment of dues is bad as plea of estoppel. In an action against a fraternal order upon an insurance certificate, a plea averring that dues were to be levied by a certain officer and that plaintiff was estopped by the facts _from maintaining the action was bad as a plea of estoppel where there was no averment that any dues were actually levied or that the insured failed to pay them.
    6. Fraternal beneficiary associations — plea setting up two defenses as bad for duplicity. In an action against a fraternal order upon an insurance certificate, a plea that the insured was not in good "standing at the time of his death because, after the revocation of the charter of his lodge, he failed to apply for a transfer to some other lodge, and because he failed to pay dues and assessments, sets up two grounds of defense and is bad for duplicity. /
    7. Fraternal beneficiary associations — when plea relating to cause of not preferring charges against member is bad as plea of estoppel. In an action against an association of railroad trainmen upon an insurance certificate, a plea averring that the insured, after the revocation of the charter of his lodge, refused to apply for transfer to some other lodge and thereby prevented charges from being preferred against him for participating in an unauthorized strike, that he therefore abandoned his membership, that the beneficiary is estopped from claiming that charges were not preferred against him and that the beneficiary is es-topped from maintaining the action was bad as plea of estoppel.
    ■8. Fraternal beneficiary associations — when beneficiary not required to exhaust remedy within the order before beginning suit. Where the constitution of a fraternal order requires a claimant to exhaust her remedies by appeal within the order before beginning suit on the insurance certificate, but does not authorize a general officer to take action in the matter until proofs of death are submitted to him, upon rejection of an alleged claim by him, on receipt of a letter from the beneficiary’s attorney merely asking for blank forms upon which to make proofs of death, the beneficiary is not required first to appeal from the adverse decision of the officer or the decision of the board approving his decision, since she had not yet presented a claim.
    9. Fraternal beneficiary associations — sufficiency of declaration against unincorporated association to support judgment for plaintiff. A declaration in an action against a voluntary unincorporated association of railroad trainmen upon an insurance certificate is not insufficient to support a judgment for plaintiff on the theory that defendant is not a legal entity, where no demurrer was filed to the declaration and no motion was made in arrest of judgment.
    Appeal by defendant from the City Court of Bast St. Louis; the Hon. William F. Borders, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.
    Kramer, Kramer & Campbell, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This action is upon an insurance certificate issued by appellant to the husband of appellee in which she was named as the beneficiary. The insured was a member of Main Lodge No. 545, which was a subordinate lodge of appellant. He died October 6,1926. A plea in abatement to the jurisdiction of the court over the person of appellant was filed, to which a demurrer was sustained. Other pleas were then filed and demurrers sustained. Later, appellant filed its amended second, third, fourth and fifth pleas and demurrers thereto were sustained. Thereupon the court entered judgment in favor of appellee for $1,800 and costs of suit. Appellant contends that the court erred in sustaining the demurrers to the several pleas aforesaid.

The plea in abatement avers that appellant is neither a corporation nor a partnership, but is a voluntary unincorporated association of railroad trainmen, known as a labor union, etc. Appellant contends that it is not, therefore, a legal entity and that it cannot be sued as such in a court of law, but that all of its members must be made defendants. The plea does not state the names of the members and for that reason it failed to give appellee a better writ, and the court did not err in its ruling. Keokuk & Hamilton Bridge Co. v. Wetzel, 228 Ill. 253. The demurrer was also properly sustained because the plea was not entitled as of any term of court. Fowler v. Arnold, 25 Ill. 284; People v. Bouderioyni, 299 Ill. 96. While there are cases to the contrary, the latest utterance of bur Supreme Court is to the effect that a plea to the jurisdiction of the person must be pleaded in person and not by attorney. Pratt v. Harris, 295 Ill. 504. That rule would probably not apply where the defendant is a corporation aggregate. Nispel v. Western Union R. Co., 64 Ill. 311. The plea in question is pleaded by attorneys and for that reason the demurrer was properly sustained.

The amended second plea covers eight pages of the abstract and it is too lengthy to copy in this opinion. It states the nature and purpose of appellant’s organization ; that it has a constitution and general rules and a beneficiary fund; that it issues insurance certificates to its members; that section 129 of the constitution of its subordinate lodges provides that monthly dues shall be levied by the general secretary and treasurer, which shall be payable on or before the first day of each month; that by section 141 a failure to pay dues and assessments on or before the last day of the month shall operate as an expulsion of the member; that under section 42 of the Grand Lodge the president of said Grand Lodge may revoke the charter of the subordinate lodge if it neglects or refuses to bring an officer or member to trial when directed by the president to do so; that by section 43 when a charter is surrendered or reclaimed by the president of the Grand Lodge, the subordinate lodge shall be known as a defunct lodge; that by section 44 a member of a defunct lodge may procure a withdrawal card to join another lodge; that by General Rule No. 10, the president of the Grand Lodge had authority to sanction a strike under certain conditions; that under General Rule No. 11, if any member incited an unauthorized strike or participated therein, he shall, upon conviction thereof, be expelled; that it was the duty of his lodge, within 10 days, to cause charges to be preferred against such member, and if this were not done the charter of the lodge may be revoked by the president of the Grand Lodge, who may transfer to other lodges the members not participating in such unauthorized strike.

The plea then avers that the insured and other members of his lodge participated in an unauthorized strike; that the president of the Grand Lodge notified the members of Lodge No. 545 that it was the duty of the lodge, within 10 days, to prefer charges against all members engaged in such strike; that said lodge ignored the notice, whereupon the president of the Grand Lodge revoked the charter of Lodge No. 545; that he notified the insured of the revocation of the charter and informed him that he must apply for a transfer to some other lodge within 30 .days thereafter; that Lodge No. 545 and its officers and members acquiesced in the said revocation of the charter and no appeal was ever taken by the lodge or any member thereof, although the lodge had the right of appeal.

The plea then avers that the insured having full knowledge of the revocation of the charter and knowing that he must, within 30 days, if he desired to continue his membership in the order, apply for a transfer to some other lodge, refused and neglected to make such application and then and there elected to abandon his membership in appellant and did abandon the same until his death, refusing to conform to any of the requirements of membership and failed to protest against or object to the action of the president or appeal from his action as he was required to do if he desired to retain his membership, and the plea avers that because of the facts aforesaid the said plaintiff is estopped from maintaining her said action and cannot maintain the same, etc.

It will be observed that the plea is not based on the theory that the insured was expelled or that the charter of the lodge was lawfully revoked. In Hatch v. Grand Lodge Brotherhood of Railroad Trainmen, 233 Ill. App. 495, we held that the president of appellant arbitrarily revoked the charter of this same lodge, in utter disregard of the provisions of appellant’s constitution and that the revocation was null and void. The position taken by counsel for appellant, in the case at bar, is that even though the charter was not legally revoked, the insured elected to abide by the action of the president in that regard. They say that the gist of their plea is that the insured “elected to abandon his membership in defendant association, and did abandon his membership.” The averments of the plea, in that regard, are that the insured having knowledge of the revocation of the charter and knowing that he must, within 30 days, if he desired to continue his membership in the order, apply for a transfer to some other lodge, refused and neglected to make such application and then and there elected to abandon, etc. The only reasonable inference to be drawn from the averments is that by reason of Ms failure to make application for transfer to some other lodge he thereby elected to abandon, etc. We find, however, that the plea further avers that the insured participated in an unauthorized strike and that under General Rule No. 10' the president of the Grand Lodge could only transfer to other lodges the members who had not participated in an unauthorized strike.

We are of the opinion that it cannot be properly held that because the insured failed to make an application for a transfer which could not be granted under the law and rules of the appellant, he thereby elected to abandon his membership.

The averments of the plea did not bring it within Lavin v. Grand Lodge, A. O. U. W. of Missouri, 104 Mo. App. 1, 78 S. W. 325; 112 Mo. App. 1, 86 S. W. 600, and other cases cited by appellant. In those cases, fixed monthly dues were payable, and the insured failed to pay the same for a long period of time. In the case at bar, the plea avers that dues were to be levied by the general secretary and treasurer but we find no averment therein that any dues were actually levied or that the insured failed to pay them.

The conclusion of the plea is that “defendant avers that because of the facts aforesaid the plaintiff is estopped from maintaining her action,” etc. It looks very much as if the pleader intended this plea as a plea of estoppel. If so, it does not contain any of the necessary averments of such a plea. 21 C. J. 1249. The court did not err in sustaining the demurrer to the second amended plea.

The third amended plea includes nearly all of the averments of the second plea. The gist of it is that the insured was not in good standing at the time of his death because he failed to apply for a transfer of his membership to some other lodge, and by his failure to pay any monthly dues or assessments levied upon the members for more than five years preceding his death. One of the grounds of the demurrer is that the plea is bad for duplicity. The plea clearly sets up two grounds of defense and the point was well taken.

The fourth amended plea includes most of the averments of the second plea. It avers that the insured participated in an unauthorized strike; that the charter of his lodge was revoked, etc., as in the second plea; that when a charter is revoked because the lodge fails to cause charges to be preferred against its members who participated in an unauthorized strike, the president of the Grand Lodge may transfer to other lodges the members not participating in such strike. The plea shows that the insured could not have procured a transfer to any other lodge under the rules of appellant, yet it avers that the insured, knowing that he had violated the laws of appellant by joining in the strike, and knowing that if he applied for and received a transfer to another lodge charges might be preferred against him, refused to apply for such transfer and that by reason thereof no charges could be preferred against him, etc. The plea then avers that the insured thereby disabled appellant from preferring charges against him and giving him a trial, whereby he abandoned his "membership in appellant and he and his beneficiary became and are estopped from claiming that charges were not preferred against him and that he did not have a trial, and that appellee, as his beneficiary, is estopped from maintaining her action. Counsel for appellant say that this is a plea of estoppel. It contains none of the necessary averments for such a plea. 21 C. J. 1249. Appellant’s president, in 1920, attempted to revoke the charter of the lodge in question, but his action in that regard was arbitrary and in violation of appellant’s constitution. The revocation was illegal and void. There were no charges preferred against the insured at any time and he was never expelled. The fourth amended plea seeks to show that appellee is estopped from cláiming that her husband was not expelled from his membership in appellant. The demurrer to this plea was properly sustained.

The fifth amended plea sets out certain constitutional provisions, one of which is to the effect that no suit shall ever be commenced upon any beneficiary certificate by any claimant until after such claimant, by appeal, has exhausted all remedies provided for in the constitution, within the time allowed by the constitution. Other provisions are made in regard to taking an appeal from the decision of the general secretary and treasurer; that upon the receipt of proofs of death, if the same be regular and satisfactory to the general secretary and treasurer, and the claim be by him deemed valid, the same shall be adjusted in its regular order. But if the general secretary and treasurer shall, for any reason, disapprove or reject such claim, or if all available proofs appear to be insufficient, it shall be referred to the beneficiary board, who may approve or disapprove the claim; if approved, it shall be assessed for and paid in its regular order. If disapproved by the beneficiary board, the claimant may appeal to the board of insurance, who may allow or disallow the claim, and its action shall be final.

The plea then avers that on October 20, 1926, the general secretary and treasurer received from one Beasley, claiming to be attorney for appellee, a letter stating that the insured had died on October 6, 1926, and requesting that the general secretary and treasurer furnish him with blank forms upon which to make proofs of death; that it then appeared from the grand register kept by the general secretary and treasurer that insured was not in good standing and had not been for more than five years. That the general secretary and treasurer disapproved and rejected said claim and refused to furnish any forms upon which to make proofs of death; that the said claim was thereupon referred to the beneficiary board which approved the action of the general secretary and treasurer.and disallowed the claim; that appellee was duly notified of that decision and that she never gave any notice of a desire or intention to appeal from, the decision of the beneficiary board to the board of insurance as required by the constitution, and no appeal was ever taken; that appellee having failed to exhaust the remedies provided for in the constitution, she is not entitled to maintain her -action, etc.

It will be observed that the plea shows that upon receipt of a letter from a person claiming to be the attorney for appellee and asking for blank forms upon which to make proofs of death, the general secretary and treasurer then and there disapproved and rejected the claim of appellee. The provision of the constitution set out in the plea did not authorize the general secretary -and treasurer to take action in the matter until proofs of death were .submitted to him. It is apparent, therefore, that appellee was not required by the rules of appellant to appeal from the decision of the general secretary and treasurer or from the decision of the beneficiary board. At the time those decisions were rendered she had not yet presented her claim, but -an attorney purporting to represent her had asked for the blanks upon which to make proofs of death. The court did not err in sustaining the demurrer to this plea.

Appellant contends that the declaration is insufficient to support the judgment. Mo demurrer was filed to the declaration and no motion was made in arrest of judgment. As we understand it the only contention made in this regard is that appellant is an unincorporated association and that it is not a legal entity; that the declaration should run against the members of the association. What we have said in regard to the plea in abatement disposes of this contention. Some other errors are assigned upon the record, but as they are not argued we will not consider them. Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Newhall

text:
    Daniel Haller, Appellee, v. Charles H. Rieth, Appellant.
    1. Defaults — binding effect of order vacating judgment. An order vacating a default judgment must be given full faith and credit as to its binding effect between the parties until it is vacated or reversed in some lawful manner.
    2. Attachment — methods of acquiring jurisdiction in absence of personal service. In order to give a court jurisdiction in an attachment proceeding, where no personal service is had, the writ must be levied on property or served on a garnishee having effects in his possession belonging to the defendant.
    3. Attachment — necessity of mailing copy of publication notice. The failure of the clerk to mail a copy of the publication notice to the address named in an affidavit for attachment within ten days of the first publication thereof is fatal to the jurisdiction of the court.
    4. Attachment — special execution defined. A special execution in attachment is process upon which a sale of property is had which has already been levied upon by writ of attachment and is in the custody of the law.
    5. Attachment — power to reinstate special execution and sale. Where a judgment by default in attachment is vacated and a writ.of special execution issued under the judgment and a sale of the property is canceled because the court never acquired jurisdiction, the court is without power to reinstate the execution and approve the sale after rendering another wrongful default judgment against the defendant.
    6. Appearances — as conferring jurisdiction. The entry of appearance by a defendant in attachment in making application for a change of venue confers jurisdiction over his person which had not heretofore been acquired.
    7. Defaults — grounds for vacating judgment. A judgment by default against a defendant not complying with a rule to plead by a specified day should be vacated, where it appears that defendant’s counsel appeared in court on the specified day in response to a letter from plaintiff’s counsel that a rule had been taken for defendant to plead by that day, that the presiding judge was one from whom defendant had requested a change of venue and the cause was continued until the next day by agreement, that defendant’s counsel appeared the next day immediately after the default had been entered, and that he then learned for the first time of the entry of the rule requiring defendant to plead on or before the prior day.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.

      J. B. Harris, for appellant.
    Feed Tunnell, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a judgment for $200 and costs entered by default against appellant in the circuit court of Madison county.

On October 25,1925, appellee commenced an attachment suit to recover $200 against appellant. Affidavit for attachment was filed alleging that appellant was a nonresident of the State of Illinois, and that he resided at 2646 Armand Ave., St. Louis, Mo.

No writ of attachment was issued by the clerk, and no process or notice of any kind was served upon or mailed to the address of appellant named in the affidavit.

The next term of the circuit court, after the filing of the affidavit, convened on January 11, 1926. On January 15,1926, appellee filed his declaration, and on January 18, 1926, appellee took a default judgment against appellant for $200, which judgment order recited that there was due service by publication and mailing at least thirty days prior to the first day of the term of court, and it was adjudged that appellee have judgment against the property attached, and have execution for the amount of the judgment. Execution and fee bill were then issued by the clerk to the sheriff, who levied upon appellant’s interest in certain described real estate in Madison county, which was sold by the sheriff on May 25, 1926, to appellee for the amount of the judgment, interest and costs.

On July 31, 1926, appellant filed his motion to vacate the judgment and sale thereunder, and upon the hearing of the motion, on notice to appellee, the circuit court, on December 6,1926, entered an order finding that at the time judgment was entered the court was without jurisdiction either of the person or property of appellant; that no writ of attachment had ever been issued by the clerk of the court at the time of the beginning of the suit or subsequent thereto; that no notice of the pendency of the suit had ever been mailed by the clerk to appellant within ten days after the date of the first publication of such notice; that no real estate or property of the appellant had ever been attached or levied upon by the sheriff prior to. the entry of the judgment. The court found and adjudged that the writ of special execution issued upon the judgment was void; that the sale thereunder by the sheriff, on May 25, 1926, and the certificate of purchase were erroneous and void; and it was further ordered that the judgment entered on January 18, 1926, be vacated and annulled and all subsequent proceedings were declared null and void, and directed to be vacated and canceled.

On August 19, 1926, appellant filed a petition for change of venue from Hon. J. F. Gilham, one of the judges of said circuit court, and, on notice to appellee, an order was entered on August 24, 1926, granting the petition for change of venue. On December 9, 1926, appellee entered his motion to vacate the order of December 6, 1926, on the ground that the same had been inadvertently entered by the court. On March 31, 1927, appellee, without notice to appellant, obtained an order of the court denying his motion to vacate the order of December 6,1926, and, at the same time obtained an order of court ruling appellant to plead or demur by April 12,1926.

On April 13, 1927, appellee procured an order of court defaulting appellant, and the court then entered a judgment finding the issues on the attachment in favor of appellee, rendered judgment for $200 and costs of suit against appellant, and directed that the special execution be reinstated against the property attached, and approved the sale, theretofore made by the sheriff, as of, April 13, 1927.

On April 20, 1927, appellant filed his motion, supported by affidavit of his counsel, to vacate the judgment order entered on April 13, 1927, for the reasons recited in the judgment order of December 6, 1926, and, in addition, the motion and affidavit alleged that the court was without jurisdiction to reinstate the special execution theretofore issued in said cause and to approve the sale made by virtue thereof on May 25, 1926.

The affidavit of counsel,, offered in support of the motion, alleged, in substance, that on April 8, 1927, he received a letter from appellee’s attorney advising him that a rule had been taken on appellant to plead by April 12 in the case of Daniel Haller v. Charles H. Rieth, attachment, and that appellant’s counsel should be present on that day; that he did appear in response to such letter in court on April 12, 1927, and it appears that Judge Grilham was then presiding-; that, after conference with" appellee-’s attorney, he learned that Judge Bernreuter would be presiding in said-court on April 13, 1927, and, inasmuch as the controversy could not be taken up until the next day, counsel for appellant agreed to appear in court the next day, April 13, 1927, and then dispose of the matter at issue; that counsel for appellant was unaware, at that time, that he had been ruled to plead to appellee’s declaration ; that on the morning of April 13, 1927, counsel for appellant appeared in court when Judge Bernreuter was presiding; that, as he entered the court room, appellee’s counsel was then before the bar of the court, and the judge was writing an order on the docket in said cause; that appellant’s counsel was then informed for the first time that a rule had been entered requiring appellant to plead to the declaration on or before April 12, 1927; that he thereupon asked the court to vacate its order and give appellant an opportunity to take such action as would be necessary in order that he might not be in default.

Subsequently, on July 18, 1927, the court overruled appellant’s motion of April 20, 1927, and this appeal is prosecuted for the purpose of reviewing the order and judgment of the trial courts

It is contended by appellant that the trial court was right in entering its order of December 6, 1926, vacating and annulling all prior proceedings in said suit, but that the court erred in entering default against appellant on April 13, 1927, in rendering judgment, and in reinstating the special execution, which had been quashed by order of court on December 6, 1926, and in approving the sale made by the sheriff thereunder.

Appellee contends that by reason of appellant’s application for change of venue, he thereby submitted himself to the jurisdiction of the court, and that the court had the right and power to enter a default and personal judgment against appellant on April 13,1927.

It is not contended by appellee that the trial court erred in its findings and judgment order of December 6, 1926, and, in view of the plain provisions of the Attachment Act and the decisions thereon, it is clear that the trial court was right in the entry of its judgment order of December 6, 1926, and until it was in some lawful manner vacated or reversed, full faith and credit must be given as to its binding effect between the parties.

To give the court jurisdiction in attachment proceedings, where no personal service is had, the writ must be levied on property, or served on garnishees having effects in their possession belonging to a defendant. (Schrorer v. Pettibone, 58 Ill. App. 436; State Bank of Chicago v. Thweatt, 111 Ill. App. 599; Clymore v. Williams, 77 Ill. 618.)

The failure of the clerk to mail a copy of the publication notice to the address named in the affidavit for attachment within ten days of the first publication thereof is fatal to the jurisdiction of the court. (Thormeyer v. Sisson, 83 Ill. 188; Dennison v. Taylor, 142 Ill. 45.)

A special execution is process upon which a sale of property is had which has already been levied upon by writ of attachment and is in the custody of the law. (Keeley Brewing Co. v. Carr, 198 Ill. 492.)

In view of the findings of the judgment order entered by the court below on December 6, 1926, and of the provisions of the Attachment Act, Cahill’s St. ch. 11, If 22, as construed above, the court was without power or authority to reinstate the special execution or approve the sale made thereunder, as was attempted to be adjudged in the judgment order entered in the court below on April 13, 1927.

Even though the court below had jurisdiction over the person of'appellant by reason of-his entry of appearance in making application for change of venue, yet, in view of the facts disclosed by the affidavit of counsel on his motion to vacate the default and for leave to plead, we are of the opinion that the court should have granted appellant’s motion to vacate the default and judgment entered April 13,1927, and given him reasonable time to plead or demur to appellee’s declaration.

For the reasons above stated, the judgment order and proceedings of the circuit court entered on April 13, 1927, are reversed, and the cause remanded with directions to allow appellant to plead to the declaration of appellee.

Reversed and remanded ivith directions.


author: Mr. Justice Wolfe

text:
    Mabel A. Little, Guardian of Robert A. Little and Helen M. Little, minors, Appellee, v. Illinois Bankers Life Association of Monmouth, Illinois, Appellant.
    1. Insurance — when prima facie case is made out in action on policy. In an action upon a life insurance policy by the guardian of minor beneficiaries, a prima facie ease was made out by introducing the policy in evidence with proof of death, payment of premiums, that the beneficiaries were minors and that plaintiff was their guardian.
    2. Insurance — burden to prove insured executed application for reinstatement. The defendant, in an action on a life insurance policy, who pleads that the insured executed a purported application for reinstatement containing false statements, has the burden of proving execution by the insured, which is denied by a replication.
    3. Insurance — sufficiency of evidence to prove insured executed application for reinstatement. Evidence by a witness for a life insurance company that a purported application by the insured for reinstatement containing false statements was part of the files of the company and had been received through the mails, with no evidence as to who executed it or who sent it, does not sustain the burden of the company to prove execution by the insured.
    4. Appeal and error — right to urge matters not proven. A life insurance company which has not met its burden to prove that the insured executed a purported application for reinstatement cannot urge on appeal that it had been deceived by false answers contained therein.
    5. Insurance — forfeiture of policies not favored. Forfeiture of life insurance policies is not favored in law.
    6. Insurance — forfeiture of policy for nonpayment of premium. A forfeiture of a life insurance policy for nonpayment of premiums will not be enforced unless the circumstances show a clear intention to claim a forfeiture for such reason, especially where the payment of the premium is delayed for 10 days after the grace period through the fault of the company and on account of its failure to give notice to the insured of the premium clause required by the policy.
    7. Insurance — burden to prove forfeiture of policy for nonpayment of premium. A life insurance company has the burden to prove forfeiture of a policy for nonpayment of premiums, under its plea to that effect and plaintiff’s replication that the company failed to comply with a provision of the company to give notice that a premium was due.
    8. Insurance — judgment for interest. Under Cahill’s St. eh. 74, if 2, in an action on a life insurance policy, it is proper to enter a judgment for plaintiff to include interest at .the rate of 5 per centum per annum upon the amount of the verdict.

      9. Interest — when begins to run on life insurance claim. A verdict for plaintiff in an action on a life insurance policy properly includes interest on the amount of the policy from the date of furnishing proof of death.
    Appeal by defendant" from the City Court of East St. Louis; the Hon. William E. Borders, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Philip G. Listeman, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

. Mabel A. Little, guardian of Robert A. Little and Helen M. Little, minors, filed her suit in assumpsit in the city court of East St. Louis against the Illinois Bankers Life Association of Monmouth, Illinois, appellant, to recover an amount claimed to be due them as beneficiaries under a life insurance policy issued by the appellant on the life of the said minors’ father. Trial by jury was had. Verdict rendered for the plaintiff in the sum of $4,000, with interest thereon at the rate of 5 per cent per annum from the date of alleged furnishing of proof of death, June 3,1926.

The plaintiff’s declaration consisted of one count alleging in substance that the appellant association was engaged in the life insurance business in this State; that in consideration of certain premiums paid, executed and delivered to Robert M. Little, since deceased, its life insurance policy, and thereby promised in the event of his (Robert M. Little’s) death, to pay the sum of $4,000 to his son, Robert A. Little, and his daughter, Helen M. Little, minors and wards of appellee herein.

The life insurance policy was set out in haee verba in said declaration. The defendant filed two pleas. The first plea of appellant, and appellee’s replication thereto, are omitted from the abstract of the record.

The appellant’s second plea in substance alleges that the policy of insurance set forth in the declaration was not in full force and effect at the time of the death of the said Robert M. Little; that before that time the policy had elapsed and become wholly void; that Robert M. Little failed and neglected to make payment of the premiums required during the month of January, 1926; that after said date said policy became forfeited and void; that the said Robert M. Little expressed a desire to become reinstated, and that this appellant at his request furnished Little a certain form of application for reinstatement containing numbered questions, each with blank spaces provided for answers thereto, said questions and answers pertaining to the present condition of health of said Robert M. Little, of the sicknesses, ailments and accidents sustained since date of application for policy, of date and severity of accident, if any; for the names and addresses of the physicians whom he had consulted, or who had prescribed for him since date of application of said policy, for the dates and nature of the ailments, if any.

The plea further avers that the said Robert M. Little made false and fraudulent answers to said questions stating that he had no accident, was in good health, no physicians treating him, when in truth and in fact the said Robert M. Little had, on November 1, 1925, been in an automobile accident in which he suffered and sustained severe injuries, and had been suffering from such injuries from that time up until the date of his death; that said injuries which were sustained at the time of such accident was the cause of his death; that said false and fraudulent representation was made for the sole purpose of defrauding the defendant insurance company.

It is further averred that the agent of the company, Mr. Mudd, knew that the statements made by Robert M. Little were false at the time the statements were so made, and that the said Robert M. Little and Mr. Mudd conspired together for the purpose of defrauding the defendant insurance company.

The plea further avers that one of the provisions of said policy is: “It is agreed that the said policy shall not be restored until this application be approved by the medical directors of the company. Should any statement or answer to the questions warranted prove to be fraudulent and untrue then the reinstatement of policy, if granted on this application, shall be void and of no effect, notwithstanding the non-contestable provision contained herein, the benefit of which in such case is waived and said policy shall not be continued in force by virtue of such reinstatement or by payment of "any premium or premiums thereunder subsequent to the date of such default.”

To this plea the appellee filed a verified replication denying the instrument was ever executed by the said Dr. Robert M. Little as alleged in defendant’s plea, but' stated that at the time said instrument was executed the said Dr. Robert M. Little was physically unable to answer questions or sign his name to said instrument; that he was paralyzed and could not use a pen; that the wife of said Dr. Little, whose name appears to said instrument, signed her name as a witness to the same before it was executed; that the appellant’s agent Mudd, who had in his possession the said instrument, told the said Dr. Robert M. Little and Mrs. Little that he would take the instrument- and fill it out and that Dr. Robert M. Little had been reinstated and his insurance was good; that he wanted the doctor reinstated so that he could vote his policy at the next meeting of the company so as to retain the officers that were now in control of the company.

In addition to the above the appellee filed replications to the special pleas.

One replication stated that the policy of insurance had never been forfeited because said policy of insuranee was in full force and effect at the time of the death of said Robert M. Little, because the terms of the policy provided: “The Association shall give notice of any premium due by depositing in the post-office at Monmouth, Illinois, addressed to the known post-office address of the policy holder,” etc. That the appellant association failed to comply with the foregoing provision of the policy of insurance, and failed to give any notice to Dr. Robert M. Little of the January, 1926, premium when the same became due and payable, and avers that the defendant knew that the said Robert M. Little had sustained an injury on November 1, 1925, and that on December 20, 1925, he became totally and permanently incapacitated from performing any duties whatever; that during the months of January and February, 1926, he was stricken with paralysis of his hands and limbs and confined to his bed all of the time, which said sickness and disability of said insured, Dr. Robert M. Little, at the time was well known to the appellant. And that after-wards on the 10th day of February, 1926, with the knowledge of the disability and sickness aforesaid, it knew that the said premium had not been paid, and knew that notice had not been given to said Robert M. Little, the appellant accepted the premium from said Robert M. Little, and then through its agents prepared a purported statement referred to in said special plea.

The defendant company filed a rejoinder to these pleas and the case went to trial with judgment for the plaintiff in the sum of $4,000, together with interest at 5 per cent, a total of $4,216.50.

The appellee made out her prima facie case by introducing in evidence the policy of insurance as set out in her declaration, which was admitted without objection. She proved the payment of the premiums and that the beneficiaries were Robert A. Little and Helen M. Little, children of Robert M. Little, the insured; her guardianship and proof of death; the blanks furnished by Mr. Mudd, agent and district manager of the appellant.

The defendant called only one witness, a Mr. Work, who identified the purported application for reinstatement, which was marked “Exhibit One” which the defendant claims is the false- and fraudulent statement of Dr. Robert M. Little, on which the policy of insurance was reinstated.

The appellant’s defense is based on the alleged fraudulent answers in the purported application for reinstatement, the execution of which was denied by appellee’s verified replication in accordance with section 52 of the Practice Act, Cahill’s St. ch. 110, ¶ 52.

The replication put in issue the execution of this instrument and the burden of proof would be on the appellant to prove that this instrument was executed by the insured, Robert M. Little. The replication also charges that the agent of the company, Mr. Mudd, knew that the said Robert M. Little, at the time this instrument was purported to have been made, was sick, -and was suffering from injuries that he had sustained in November a year previous, and that the agent Mudd had made out this instrument with full knowledge of the facts and had forwarded same to the defendant company.

The evidence does not show who executed this instrument. Mr. Work, being the only one who testified, stated it was a part of the files of the company and had been received through the mails. Who executed it or sent it to him he did not know. The record is silent as to who executed it. It being a matter in issue with the burden of proof on the appellant to prove (Monahan v. Metropolitan Life Ins. Co., 207 Ill. App. 200), it cannot now complain that the answers contained therein are false and fraudulent, and has been deceived thereby.

The evidence shows the insured never made the answers supposed to have been made by him, and there is no evidence that he ever authorized anyone else to make such answer for him. In fact there is no proof in the record that the insured knew anything about the supposed answers or that he ever saw the purported application for reinstatement.

The plaintiff’s replication to the defendant’s plea put in issue whether or not the association had given notice to said Bobert M. Little of the premium that was due in January, 1926, as provided in the policy of insurance; the defendant claimed that it was not bound to prove that notice was given, but that it was a matter that plaintiff should prove that they did not give notice.

Forfeiture of life insurance policies is not favored in law, and unless the circumstances show a clear intention to claim a forféiture for nonpayment of the premium, such forfeiture will not be enforced. This is especially so where the payment of premium is delayed for 10 days after the grace period, through the fault of the insurance company and on account of its failure to give notice to the insured of the premium clause required by the policy. (Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369, 372; Freise v. Metropolitan Life Ins. Co., 206 Ill. App. 404.)

We think under the pleadings in this case the burden of. proof that there had been a forfeiture of this insurance policy was on the defendant.

There was no attempt made to show that there ever had been any notice given to the insured, Bobert M._ Little, that there ivas a premium due, or what the amount of the premium was; nor was there any evidence at all aside from the mere introduction of the purported statement of said Bobert M. Little that he had ever made application for reinstatement in the company; but the evidence does show that the company accepted the premium on February 10, 1926, and another premium after that and treated the policy as in full force and effect.

The appellant assigned as error that it was error for the trial court to allow interest on the judgment. We think the authorities fully sustain the trial court in allowing interest upon the judgment. The statute provides: “Creditors shall be allowed to receive at the rate of five (5) per cent per annum for all moneys after they become due, on any bond, bill, promissory note or other instrument of writing.” Cahill’s St. ch. 74, ¶ 2. An insurance policy comes within this provision of the statute, and was so held in the case of Massachusetts Mut. Life Ins. Co. v. Robinson, 98 Ill. 324; Grand Lodge Brotherhood of Locomotive Firemen v. Orrell, 206 Ill. 208.

The jury by their verdict allowed 5 per cent interest on $4,000 from date of furnishing proof of death, which was June 3, 1926. The trial court properly entered judgment for interest at the rate of 5 per centum per annum upon the amount as found by the wry.

The burden of proof being upon the defendant to show that there had been a forfeiture of this insurance policy, and the evidence failing to show that there had been a forfeiture, the judgment of the trial court is affirmed.

Affirmed.


text:
    Jessie M. Boyle, Appellee, v. B. R. Boyle, Appellant.
    1. Parent -and child — liability of divorced father to support minor child. Where the parents of a minor child are divorced and no mention is made in the decree for the support and custody of the child, the father, refusing to furnish the support, is liable to the mother for her support of the child during its infancy, provided the child is, by reason of its tender years or infirmity, unable to support itself.
    2. Saving questions tor review — when, propositions of law are unnecessary. The purpose of submitting propositions of law is to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding, and, hence, they are unnecessary where the ruling of the court itself showed the principles of law the court applied to the facts.
    3. Trial — effect of failing to marie propositions of lam “given” or “refused.” Where a judge, through error or inadvertence, fails to mark propositions of law “given” or “refused,” the effect is the same as if they had been formally marked and refused.
    4. Judges — acts necessary to qualifying. An elected circuit judge is not qualified to do any judicial act until he subscribes to the oath of office and it is filed with the secretary of State, and until he receives his commission from the governor.
    5. Judges — holding over at end of term of office. A circuit judge has a right to hold over until a new judge is elected and qualified.
    6. Judges — presumption of legality of acts of judge holding over. Where a circuit judge, having a case under advisement, is defeated for re-election and enters a judgment five days thereafter it will be presumed, in the absence of a showing to the contrary, that the new judge had not qualified and that at the time the defeated judge entered the judgment he was still acting in his judicial capacity and had authority to make the entry.
    . Appeal by plaintiff from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    J. J. Burlington, for appellant.
    Schuwerk & Schuwerk, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case was commenced before a justice of the peace in April, 1926, for necessary support of an infant child of appellee and appellant, the child then being about the age of' four years.

In September, 1924, the appellant was granted a divorce from the appellee on the charge of desertion. In the bill for divorce the child was not mentioned and no provision for the care and custody of the child was made by the decree of divorce.

This suit was commenced to recover money necessary for the support of the child from the time of the divorce to April, 1926. The trial resulted in a verdict in favor of the plaintiff, Jessie M. Boyle, before the justice of the peace. The defendant appealed to the circuit court of Randolph county. The case was heard at the September term, 1926, and resulted in a verdict in favor of the plaintiff in the sum of $300.

In March, 1927, the evidence in the case was reheard and the case submitted to the court on briefs and propositions of law April 22, 1927. The Hon. George A. Crow, then judge of the circuit court presided. The case was taken under advisement and judgment entered on June 11, 1927, five days after the judicial election, at which time Judge Crow failed of re-election.

The appellant contends that under the facts of the case appellee was not entitled to recover money expended by her for the support of the child. It is admitted, however, that, if the plaintiff is entitled to recover at all, she is entitled to the sum of $300.

The appellant also contends that the court erred in refusing the findings of fact submitted by the appellant ; also, that the term of office of Judge Crow expired June 6th, and on that date he ceased to be a judicial officer and had no authority to enter judgment on June 11, 1927.

The facts in this case aré not in dispute. It becomes a question of law whether or not a husband — if during the divorce proceeding no mention of the care and custody of a minor child having been made — is liable to his former wife for the support and maintenance of their minor child during infancy.

In the argument of the appellant he lays stress upon the fact that it was through the fault of the wife that the divorce was procured, namely, desertion. The record shows that the wife entered her appearance in writing in the divorce proceedings and knew the charge against her by her husband in his bill for divorce. Evidently she knew that her husband was not claiming the right to the possession of the child. He made no attempt whatsoever to have the court decree the care and custody of the child to him. The husband at no time seemed to concern himself about the care and custody of the child, either before or after the divorce was granted. It is apparent from the files of the case that the wife knew all about these proceedings and was probably just as anxious to have him get a divorce as he was to get one.

Before the starting of this suit the plaintiff lived in the State of Kansas, but had recently returned to the State of Illinois. After procuring a divorce the defendant moved to the State of Kentucky, and at the time of the hearing of the case was a resident of the State of Kentucky, but. the plaintiff had procured service on him in the State of Illinois.

When the parents of a child are divorced and no mention is made in the decree for the care and custody of the minor child, under the law, the father is still bound to provide a reasonable and proper support for the said minor child, depending upon the age, ability, and circumstances of the child. This is true whether the child is in the possession of the mother or some one else, so long* as the child by reason of its tender years, or physical ability cannot earn his or her own living. Plaster v. Plaster, 67 Ill. 93.

The divorcing of a father of an infant child from his wife and the mother of such child, does not relieve such father from his duty to support his infant child. If the father fails and refuses such support and the mother furnishes the same, she may have an action against such father for such support and maintenance, provided the child is, by reason of its tender years or infirmity, unable to support itself. Parkinson v. Parkinson, 116 Ill. App. 112.

We are of the opinion that the trial court held as a proposition of law that the father under these cireumstances was liable for the support of the minor child.

At the close of the evidence in the case propositions of law were submitted by the defendant which the court failed to mark “held” of “refused.” The purpose of submitting these propositions was to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding, and, hence, they are unnecessary where the ruling of the court itself showed the principles of law which the court applied to the facts. Selph v. Grossman, 192 Ill. App. 67.

Where the judge, through error or inadvertence, failed to mark such propositions “given,” or “refused,” the effect is precisely the same as if they had been formally marked and refused. Calef v. Thomas, 81 Ill. 478; Chicago, Wilmington & Vermilion Coal Co. v. People, 114 Ill. App. 75-97.

Judgment in this case was not entered until June 11, 1927, after the judicial election of this year. The counsel for the appellant seriously contends that by reason of said election Judge Crow lost his jurisdiction of the case on June 6th, and could not perform any judicial act after that date, and cites the case of People ex rel. Holdom v. Sweitzer, 280 Ill. 436, as supporting his contention.

We have carefully examined that ease and find that the point raised in that case is not the same one that appellant has raised in this case. In the Sweitzer case it was contended that the judges elected on June 7, 1915, would be -entitled to receive the increase in salary that had been given them by the act of the legislature to take effect July 1, 1915. The canvassing board did not make their complete,return until July 13, 1915. The commissions were issued to the several judges by the governor and they assumed their duties of office later. The court held in the Sweitzer case that so far as the salary act was applicable, the judges would be considered elected and the term of office would begin on election day, or June 7, 1915. The question of whether or not judges who had been elected before that date would still be considered judges capable of performing judicial acts was not involved in the Sweitser case.

In the Sweitzer case the court on page 444 says: “The term of office as fixed by law is sometimes used interchangeably with the term or time of occupancy of the incumbent of such office, but it must be distinctly borne in mind that the term of office as fixed by law is entirely different from the period of time such office is held by the incumbent thereof, sometimes referred to as the term.”

And again: “While this act did not fix the terms of office in the same manner or by the same language as did the acts of 1887 and 1893, its plain meaning, and the only meaning of which it is susceptible, is that the additional judges elected under that act were to be elected on the first Monday of June in the year 1915 and every six years thereafter, and the terms of their office should be six years, ‘and until their successors shall be elected and qualified. ’ The words last above quoted clearly imply that if the said judges held over beyond election day they would be holding over beyond the terms for which they were elected and into the terms of their successors in office, for, as subsequently shown, there is nothing to prevent the judges so elected from qualifying and receiving their commissions as soon as the votes cast at the election are canvassed and the result is announced, which might be immediately after the election.”

And again: “Much has been said about the provision contained in section 32 of article 6 of the constitution of 1870, that all officers mentioned in that article shall hold their offices until their successors shall be qualified, as showing that the term of a successor does not begin until he has qualified. Such provision, has nothing to do with the case. While it is true that when a person elected to office for a definite period or term for some reason holds over into the term of his successor the time of holding over is a part of his original term of office, still it must be conceded that the period which he does so hold over is exactly what is implied by the term ‘holding over,’ as being beyond the term fixed by law and into the term following to be filed by a successor.”

And again: “In legal contemplation an office that has once been created is necessary, and it is never vacant and is presumed to be continuously filled until it is abolished. Where there'is no definite date fixed for the beginning of a term of office there is usually a short interim between the date of election and the date of qualification of the successful candidate. Such interim is of no fixed duration. It might be one day or a few days,' depending upon when the judges of election in the different voting precincts complete the count of the votes cast, send in their returns to the proper authorities and the returns are canvassed and the result proclaimed, and such things necessarily depend upon inconsequential details, such as the number of votes cast, the time necessary to count them and make up the returns, the distance and means of travel between the voting places and the county seat, the distance from the county seat to the capital, and-to some extent upon the diligence of the canvassing boards.”

And again: “It will thus be seen that the votes must be canvassed and the result declared after the election, but such canvass must not be later than twenty days. It could be the day after election, so far as the law is concerned. Of course, one who was declared elected to an office would not assume the duties of such office until his commission was issued and he had taken the oath of office, where such oath is required, after which time he would be fully qualified and competent to act.”

The constitution of our State provides, Cahill’s St. Const, art. VI, § 14: “The election for judges of the circuit courts shall be held on the first Monday in June, in the year of our Lord, 1873, and every six years thereafter.”

It further provides, Cahill’s St. Const. art. VI, § 12: “The terms of office of judges of circuit courts shall be six years.”

Article 6, section 32, Cahill’s St. Const. art. VI, § 32, of our constitution provides: “All officers provided for in this article hold their offices until their successors shall be qualified.”

Article 5, section 25, Cahill’s St. Const. art. V, § 25, provides: “All civil officers, except members of the General Assembly and such inferior officers as may be by law exempted shall before entering upon their duties of their respective offices make and subscribe the following oath.”

Art. 6, section 29, Cahill’s St. Const. art. VI, § 29, provides: “All judicial officers shall be commissioned by the Governor. ’ ’

The statutory provision relating to the terms of office of circuit judges is as follows, Cahill’s St. ch. 37, ¶ 82: “The several judges of the circuit courts of this State, and of the superior court of Cook county, shall, before entering upon the duties of their office, take and subscribe the following oath or affirmation (Oath), which shall be filed in the office of the Secretary of State.”

From the foregoing it will appear that before a judge-elected on June 6th, 1927, would be qualified to do any judicial act he first would have to subscribe to the oath of office and the same should be filed with the secretary of State; second, he shall receive his commission from the governor. These two requirements are mandatory, and any act that he would perform before these requirements have been complied with would be a nullity.

The language used by the Supreme Court in the Sweitser case, supra, clearly recognizes the right of a circuit judge to hold over until the new judges are elected and qualified. The office will be presumed to be continuously filled, namely, that in the interim between the election day and the time when the newly-elected judges take their oath of office and receive their commissions, there must be some one legally qualified to perform judicial acts, and no one but a former qualified judge could perform such acts.

In this case it is not contended that any of the newly-elected judges either took their oath of office or filed it with the secretary of State, or that the governor had commissioned them to act as circuit judges before June 11, 1927. In the absence of any such showing the court will presume that it had not been done, and that at the time Judge Crow signed this order on June 11th he was still acting in his judicial capacity and had authority to sign or enter this judgment.

We find no reversible error in this case and the judgment is affirmed.

Affirmed.