text:
    Jennie Laughlin, Appellee, v. North America Benefit Corporation, Appellant.
    Gen. No. 8,049.
    1. Insurance — allegmg and proving compliance with mutual insurance certificate provision for delivery to one in good health as precedent to recovery. The provision of a certificate or policy in a mutual benefit association that the insurer shall not be liable for any benefit to the applicant until the certificate is delivered to and accepted by the applicant, while the latter is in good health, is valid and enforceable, and a condition precedent to the beneficiary’s recovery on the policy, which must be alleged in the declaration and. proved.

      2. Insurance — -failure of declaration for insurance to allege compliance with condition precedent to recovery as ground for directed verdñct or arrest of judgment. A declaration for recovery on a mutual benefit certificate of which acceptance by the applicant while in good health is a condition precedent, which fails to allege compliance with the condition does not state a cause of action, and the court should instruct the jury to find a verdict for the defendant and should arrest the judgment on defendant’s motion.
    3. Insurance — what mutual benefit certificate gimes no legal claim. A certificate of a mutual benefit association which promises nothing except to ask other members of the same class as a member decedent to make free will contributions to a certain limit in favor of the named beneficiary creates no legal claim in favor of the certificate holder.
    4. Insurance — when benefidamy cannot compel payment of certificate entailing no legal obligation. The courts are not under duty to correct the morals of litigants by compelling a mutual benefit association to make good the face of its certificate after receiving premium payments from the insured by alluring statements, in absence of any legal obligation towards the certificate holder.
    5. Insurance — insured’s misrepresentations as to.her health and age as avoiding injustice of denying validity of mutual benefit certificate. Under preponderating evidence showing that one who secured a certificate from a mutual benefit association was over the age claimed and was not in sound health at the time, even though such matters were not in issue because of failure to allege in the declaration that the certificate was received by an applicant in good health, no distinct injustice was done the beneficiary by holding that the certificate contained no legal obligation of the association to pay anything on the certificate.
    Appeal by defendant from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed with a finding of fact.
    Opinion filed April 22, 1927.
    Rehearing denied and opinion modified and refiled June 24, 1927.
    Dobbins & Dobbins, for appellant.
    Green & Palmer, for appellee; George E. Martin and Oris Barth, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee, beneficiary under a contract for benefits issued by appellant to her mother, Mary E. Cedusky, brought her suit upon her mother’s death in the circuit court of Champaign county, in assumpsit, to recover the apparent face value of the contract or policy amounting to the sum of $1,000. Appellee, in her declaration, set out the policy and certain by-laws of appellant as follows:

“North America Benefit Corporation
“410 South Sixth Street, Springfield, Illinois.
“No. 10130.' Age 64.
“In consideration of the payment of five dollars charter fee, the receipt of which is hereby acknowledged, and the further future contributions hereinafter mentioned, entitles Mary E. Cedusky of Champaign, Illinois (hereinafter called the member), to all the benefits of this corporation, and in the event of death of said member entitles Jennie Laughlin of Champaign, Illinois, named as beneficiary, to an amount not to exceed the sum of
“One thousand dollars.
“Subject, however, to the conditions herein named, and it is understood that any benefits mentioned in this policy are conditioned that prompt and full payment by the member be made to The North America Benefit Corporation at its office in Springfield, Illinois, of any and all contributions that may become due hereon pursuant to the provisions of the application for this policy and the by-laws of this Corporation.
“And provided further, that the holder of this contract shall have fully complied with the conditions and agreements contained in the application, and in this certificate, and in the by-laws and articles of agreement of The North America Benefit Corporation.
“In Witness Hereof, the signature of the president and secretary, and the seal of The North America Benefit Corporation is affixed at Springfield, Illinois, this first day of July, 1924.
“A. C. Littlejohn, President,
“(Seal) H. P. Mohay Bechner, Secretary.”

Appended to the policy or contract, as set up in the declaration, is a complete copy of the by-laws of the corporation, which, so far as material on this appeal, are as follows:

“By-Laws.
“Article I.
“The Association — Its Name and Membership.
“Sec. 2. Membership — Any person, male or female, between the ages of ten and sixty-five years, inclusive, at nearest birthday, of good moral character, if accepted by the corporation, may become a member of this corporation by signing the application and by paying a membership fee and one assessment in advance.
“Sec. 3. Certificate — When an application is accepted by this corporation and the membership fee and one assessment in advance are paid, the corporation will issue to such applicant a certificate, but no liability shall arise thereon against the corporation, nor any benefit be due to the applicant until the issuance of such certificate and its delivery to and acceptance by the applicant while such applicant is -in good health.
“Article IV.
“Section 1. Amount of Benefits — The maximum death benefits under any certificate issued by this corporation shall be $1,000.00, which amount is subject to conditions hereinafter named.
“Article V.
“Section 1. When a death shall occur in the class in which this contract is issued and the corporation is liable therefor, it shall be the duty of each member of this class to make a contribution, which contribution will be one dollar. This is the only time a contribution is required, except for expenses. No member will be called upon to contribute to the expense of the corporation in excess of three dollars in any twelvemonths period. These expense assessments shall be made at the discretion of the board of directors. The directors, if they deem it necessary, may call for a reserve contribution which shall never exceed $1.00 per member and the amount of this reserve shall never exceed $1.00 for each member in the class of which the contract holder is a member.
“Article VI.
“Section 1. Benefits — Upon the death of any member of this corporation, if such member shall at the time of his death be in good standing and shall have complied with all the laws, rules and regulations of this corporation, and upon proofs of death duly submitted to the corporation, the corporation will pay the maximum benefit of $1,000.00, provided same is in the reserve at the time of death; if it is not in reserve at the time of death a contribution will be called for from each member of the class of which the contract holder is a member. Any benefits mentioned in these by-laws or anywhere in the contract issued are conditioned upon the same being collected from the members if the same is not already .on deposit in the reserve and the total liability of this corporation shall not in any case exceed a sum equal to one dollar for each member in good standing or shall not exceed the amount collected from the remaining members of the class of which the contract holder is a member.
“Article IX.
“Notice of Assessment.
“Section 1. Upon the death of any member of this corporation who is in good standing, and information of such fact be given to the secretary of this corporation, as provided in Section 1 Article VIII, it shall be the duty of said secretary to promptly notify all members of the class in which such death occurs, of the fact that a contribution is due and shall mail said notice to each member of such class, at the postoffice address last furnished in writing by such member to said secretary, and this shall constitute and be a legal and lawful notice to each member of such class of said assessment. Every member of this corporation shall, within fifteen days after the mailing of any notice of assessment, pay the amount thereby assessed against him or her and a failure so to do shall ipso facto suspend the member so failing from all rights and benefits in this corporation.
“All payments made by any member now or hereafter are voluntary gifts or donations for the purpose of aiding members of this corporation and to take care of expense of the said corporation.”

Mary E. Cedusky signed an application and made the payments required on July 3, 1924, and the declaration charges that she did, during her lifetime, keep, perform and comply with all the terms, provisions and conditions of the “said policy of insurance” upon her part to be kept and performed by the terms thereof, and that she, Mary E. Cedusky, died on April 19,1925, and that on April 28, 1925, appellee gave to appellant notice of the death of said Mary E. Cedusky, “by means whereof the defendant then and there became liable to pay to the plaintiff, to wit the sum of $1,000, ’ ’ etc., “together with interest,” etc.

Appellee did not set out the application signed by Mary E. Cedusky as a part of the declaration, and there is a great deal of contention in the briefs and arguments as to whether certain statements in said application constituted warranties or were mere representations, a determination of all of which we do not deem necessary to a proper conclusion of the case. We do insert certain clauses and provisions of the application, introduced in evidence by appellant, for the purpose of shedding light upon the real nature of the contract and amplifying the meaning of certain phrases found in the contract itself.

The application provided:

“North America Benefit is not an insurance company, hut a corporation organized under the laws of Illinois, chartered by the Secretary of State. Its purpose is to create an estate of $1,000 for each of its members for the protection and relief of those dependent on them. This corporation will furnish this protection at actual cost, and all benefits will be paid promptly after proof of death is received at the home office.
“There is absolutely no ‘red tape,’ no medical examination is required. The contract is in full force and effect as soon as the first payment is received at the home office and contract issued. Men, women and children in good health, between the ages of 10 and 65 years, are eligible. Members will be divided in classes of one thousand each; there will be numerous classes, but no more than one thousand in any one class. The charter membership fee is $5.00. This amount puts your certificate in force at once. The future payments will be only $1.00 each time a member dies. There will be no other expense whatsoever, except a small payment two or three times per year for expense of the corporation, which payment, under no circumstances, will exceed one dollar.
“It is understood and agreed by the appellant that the value and conditions of the certificate to be issued on this application shall be as follows, and that all payments made now or hereafter are voluntary gifts or donations for the purpose of aiding and assisting members of this corporation and to take care of expenses incidental to same.
“The applicant hereby agrees to pay any contributions of which he is notified and it is hereby agreed and understood that contributions will be called for as follows: One dollar for death of each member in the class in which this policy is issued. There will be no other expenses whatsoever except a small contribution two or three times a year for the expense of the corporation which shall not exceed one dollar each time.
“It is hereby provided and mutually agreed that this application shall be considered as part of the contract for membership and should this application be accepted and the certificate issued thereon, I hereby accept the by-laws and regulations with all amendments governing the corporation and hereby appoint and constitute A. C. Littlejohn of Springfield, Illinois, and his successor in office, to be my lawful attorney in fact, and, in my stead, is hereby authorized and empowered to cast my vote at any meeting called, and at the annual election for the election of directors and on any question arising for consideration, which I might legally cast if present, which power of authority shall continue in force during the life of this certificate. ’ ’

The application further stated that the applicant was born in 1860 and was, therefore, 64 years of age. The application, signed on June 25, 1924, stated that applicant did not have any of a different list of diseases, including lung trouble and asthma, or any other diseases, and that she had received no medical attention during the past two years and declared and agreed that she was in good and vigorous health, and that the statements were made and the application signed for the purpose of procuring membership in said corporation.

The application also contained certain effusive statements upon the back, such as:

“Some people think that when they go out of this world that the Lord will provide for his dependents., If you believe this, go through all the poorhouses of the country, then you will see how God provides for the neglected children and other dependents. That is, He provides for them through public charity. As for yourself, you had rather the Lord would provide for yours in a private home which your forethought had provided. ’ ’
“WHEN YOU AEE THEOUGH — WHAT THEN?
“Some day, when you have passed out of this life, a friend will lay a lily on your chest, heap praise and kindly tribute upon what is left of you, lay you away and proceed to forget you. When you pass into the unknown will your dependents be protectedf The time to decide is now — by filling out the application, mailing same to home office of the corporation with five dollars ($5.00) attached, which will create an estate at once for not to exceed one thousand dollars for your loved ones.”

In the application the defendant company states:

“COULD YOU LOSE? NO!
“All money for benefits is deposited in banks, held in trust by the management and can be used only for the payment of benefits. The amount due the dependents of the deceased member is no deposit or will be collected at once and check will be mailed promptly after proof of death is received at home office of the corporation.”

All of which statements are of the nature and strongly tend to mislead and pervert the mind of the aged, feeble and inert. However, it is distinctly denied by appellee in this case that her mother, the member, signed the application, knew anything about it, or that it formed any part of the contract.

Appellant demurred to the declaration generally, which was overruled and appellant filed a plea of the general issue, with a plea of tender to appellee for the sum of ten dollars and the accrued costs, amounting to the sum of $13.50. There were various other special pleas filed, demurrers and replications, upon which hearings were had. Appellant filed six special pleas as follows :

The first special plea alleged that the deceased, Mary E. Cedusky, did not during her lifetime keep, perform and comply with all the terms, provisions and conditions of said policy of insurance, upon her part to be kept and performed, and concluded to the country, upon which plea issue was joined.

The second, third, fourth, and fifth special pleas each averred the execution of the application and the second averred the statements in the application and that the deceased did have a disease of the lungs and bronchial tubes, known as bronchitis, at the time of executing said application, which was a contributing cause of her death a few months later.

The third was based upon medical attention had by deceased during the last two years of her life, and the fourth, upon the statement in the application that the deceased was in good and vigorous state of health at the time of signing said application, and "the fifth, that the applicant was born in 1854 and not in 1860 and was therefore 70 years of age at the time of signing said application.

Appellee filed replications to said special pleas and averred that the applicant did not herself, or through an agent, execute the said application and did not make the statements set out in said special pleas and concluded to the country. A demurrer to these replications was overruled and issue joined on the averments in the replications. There was a second replication to the fifth special plea, denying that the deceased was above the age of 65 years at the time of signing said application, to which a demurrer was filed, overruled and an issue joined on said replication.

There was a sixth special plea alleging that said contract was procured by appellee and at her instance and was not procured by the deceased, and that said contract was a pure gambling contract. Appellee, by replication, denied the allegations in the sixth special plea and issue was formed on this plea.

Appellant by leave of court filed the seventh and eighth special pleas; the seventh set out the charter powers of appellant and showed the purposes of the corporation: “To unite fraternally all reputable persons who are in good health, 10 to 65 years of age, inclusive. Not for pecuniary profit, but for the purpose of giving relief to those depending on its members, and to aid its members who become totally disabled, all such aid to be voluntary contributions and not by fixed dues or assessments ’ ’ and the plea avers that at the time of issuing said certificate the deceased was above the age of 66 years and that appellant had no power to issue the said certificate. The plea further sets out the payments by the deceased or the plaintiff, and avers the tender and prays judgment. The eighth special plea is the same and avers that at the time said deceased attempted to become a member of said corporation and said certificate was issued, the said deceased “was not in good health” and appellant had no power to issue said certificate and prayed judgment.

Appellee replied to the seventh special plea, averring the deceased to be between 10 and 65 years of age at the time of issuing said certificate, and an issue was made upon said replication. The court sustained a general and special demurrer to the eighth special plea. We have set out the pleadings fully to show the issues, genuine or feigned, upon which this cause was tried and shall discuss them further in connection with some of the evidence in the case.

On the trial appellant objected to the introduction of the certificate or contract in evidence on the ground that “appellee had failed to show a compliance with the conditions precedent mentioned in that paper,” and appellant further objected: “They have not shown, that they have paid the amount required by the application and they have not offered the application in evidence and they have not shown a compliance with the by-laws, all of which are conditions precedent to any recovery whatsoever under the contract.” At the close of plaintiff’s evidence appellant moved the court to instruct the jury to find a verdict for appellant, which was denied. There was a verdict in favor of appellee in the sum of $1,049.34, a motion for a new trial, which was denied and a motion in arrest of judgment, which was denied, to which exceptions were taken and appellant has properly preserved its rights by assignments of error.

From reading this record it seems impossible that counsel on either side could have argued these motions in the court below, or judgment would not have been entered in that court. Appellee pleads the contract and the by-laws of the association as a part of the contract, in which it is provided:

“No liability shall arise thereon against the corporation, nor any benefit be due the applicant until the issuance of such certificate and its delivery to and acceptance by the applicant, while such applicant is in good health.”

This is a condition precedent of appellee’s right of recovery and must be alleged in the declaration and established by proofs of appellee. There is no allegation in the declaration averring the delivery of the certificate while the applicant was in good health or as to the health of decedent in any manner at any time. Such contracts are lawful and may be enforced. (Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 437, citing Rose v. Mutual Life Ins. Co., 240 Ill. 51; Devine v. Federal Life Ins. Co., 250 Ill. 206.) There was no issue in the case as to whether or not the certificate or policy was delivered to the deceased and accepted by her while she was in good health. The allegation and proof constituted a condition precedent and should have been alleged and proved. (Rockford Ins. Co. v. Nelson, 65 Ill. 415; Carbone v. Pennsylvania Fire Ins. Co., 222 Ill. App. 564, and other cases cited.)

The declaration did not state a cause of action and the court should have instructed the jury to find a verdict for the defendant and should have arrested the judgment. (Steinsultz v. Illinois Bankers Life Ass’n, 229 Ill. App. 199; Weber v. Prudential Ins. Co. of America, 284 Ill. 326; Ellis v. State Mut. Life Assur. Co. of Worcester, 206 Ill. App. 226, and Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83, and many other cases.) Why the parties to this suit should have carried on moot litigation over the feigned issues growing out of the second, third, fourth and fifth special pleas in regard to the application, which appellee contends her mother never executed, and in regard to statements by deceased, which appellee contends her mother never made, is beyond the comprehension of this court. It seems impossible that the demurrer to the declaration could have been argued and overruled. Appellant in the eighth special plea, stating a conclusion, undertook to raise the issue as to the delivery of the policy while the deceased was not in good health. This was demurred to and sustained and it seems strange that applicant did not ask to carry the demurrer back to the declaration. It is not, however, the only strange feature of the case.

An equally serious question arises in this case ais to the allegations in the declaration and whether they charge any promise or liability against appellant which is not fulfilled. The pleaded contract or certificate in the declaration contains no promise, covenant or agreement to pay appellee anything. It states that upon certain payments being made the deceased, Mary EL Cedusky (the member) becomes entitled to all the benefits of the corporation, appellant, and upon her death the appellee becomes entitled as beneficiary to an amount not to exceed the sum of $1,000, subject, however, to the conditions herein named, and, it is understood that any benefits mentioned in this policy are conditioned that prompt and full payment by the member be made to appellant of any and all contributions that may become due hereon, pursuant to the provisions of the application for this policy and the bylaws of this corporation.

In the first by-law cited by appellee in her declaration, one can only become a member by signing the application. In this case appellee contends that her mother never signed any application and under her declaration, therefore, her mother, the deceased, was not a legal member. This is not an insurance company but an association of members formed, not for pecuniary profit, for the following purpose:

“To unite fraternally all reputable persons who are in good health, 10 to 65 years of age, inclusive. Hot for pecuniary profit, but for the purpose of giving relief to those depending on its members, and to aid its members who become totally disabled, all such aid to be voluntary contributions and not by fixed dues or assessments.”

It may be here pertinent to state that nothing in the declaration or the proof indicates that appellee was in any manner dependent upon the member, her mother, but the proof shows the contrary.

The corporation, appellant, consists of all these members, reputable, who have united fraternally, not for pecuniary profit but for the purpose of giving relief to those depending upon its members — all such aid to be voluntary contributions and not by fixed dues or assessments. The corporation is not some distinct entity, separate and apart from the members, but it is the united membership of Mary E. Cedusky, in her lifetime and the thousand other dupes who paid their money into the lap of a president, secretary, treasurer and board of directors, usually constituted in one person, their “universal” attorney in fact. That the spirit and intent of the charter was fully carried out in the by-laws is shown by an examination of the same. Article 4, section one, provides: “That maximum death benefits under any certificate issued by this corporation shall be $1,000.00 which amount is subject to conditions hereinafter named.” Article 5, section one, provides that, “when a death shall occur in the class in which this contract is issued and the corporation is liable therefor, it shall be the duty of each member of this class to make a contribution, which contribution shall be $1.00.” The section further provides for expenses and article 6, section one, provides that when a death occurs of a member in good standing, etc, “the corporation will pay the maximum benefit of $1,000.00, provided same is in the reserve at the time of death; if it is not in reserve at the time of death a contribution will be called for from each member of the class of which the contract holder is a member. Any benefits mentioned in these by-laws, or anywhere in the contract issued are conditioned upon the same being collected from the member,” etc.

This clause, together with the last clause of section one, article nine, as follows: “All payments made by any member, now or hereafter, are voluntary gifts or donations for the purpose of aiding members of this corporation and to take care of expense of the said corporation,” form the contract entered into by the deceased, and to which she made contributions. There are other provisions but none which vary the terms of the contract. It is a mutual, voluntary organization of members which pledge to each other their moral aid, but waive all legal rights, unless there be a reserve fund, which each member has agreed should be a voluntary gift or donation and in which no member, either living or dead, would have greater right than another unless it should be voluntarily turned over. Could the Bed Cross Society, another charitable organization, any more carefully protect itself from legal assault? Under the terms of this certificate appellee’s mother became one of a class of 1,000, so devoted to each other that each pledge the other, not by contract, but as a free will offering and gift — donation—to contribute the sum of one dollar to each member of the class that should die, and evidently there was no escaping from one class into another because the application provided: “Members will be divided in classes of 1,000 each; there will be numerous classes but no more than 1,000 in any one class.”

The Massachusetts Supreme Court, in Burdon v. Massachusetts Safety Fund Ass’n, 147 Mass. 360,17 N. E. 879, said:

“However fallacious and visionary the hopes inspired by this form of life insurance might be, and however ill-advised its provisions, we find nothing to vary the rights of the parties, as ascertained from the terms of the contract into which they have allowed themselves to enter. The court cannot act as a special providence to protect one class in particular, where all are or may be losers. All we can do is to take the contract as we find it. It follows that upon the death of a member no attachment could be made of the safety fund, nor any action at law be maintained against the association, unless upon a refusal to lay an assessment upon the holders of certificates in force. The actions which were brought appear to have been brought under the misconception that the association had bound itself to pay $1,000. It had only bound itself to lay an assessment, and to pay over the amount collected thereon. For a refusal to lay such an assessment it may be that an action at law would lie; but the more appropriate remedy would be by'a proceeding in equity to compel the association to lay the assessment.”

Substantially the same holding has been made in this State in New Home Life Ass’n of Illinois v. Hagler, 23 Ill. App. 457; Abe Lincoln Mut. Life & Accident Soc. v. Miller, 23 Ill. App. 341, and Ring v. United States Life & Accident Ass’n, 33 Ill. App. 174. In the last case cited it is held (page 174) :

“In suits ón certificates of benefit societies, there seems to be some contrariety in the decisions. The contracts of the different corporations differ in form. Some are absolute in the promise to pay a certain sum upon the member’s death. Others provide that upon the death of the member the company shall only pay over the proceeds of certain assessments, not to exceed a stipulated amount. In this later class of cases, ‘it is not entirely agreed what remedy is most proper, if the association denying its liability refuses to levy the promised assessment, for the authorities are not in harmony. * * * The decided preponderance of authority is in favor of the view that an action at law can be maintained against the society for a refusal or neglect to make the assessment.’ Bacon, Benefit Societies, Sec. 453, and cases there cited.
“The certificate sued on in this case, differs essentially from those in cases cited by counsel for defendant in error. In nearly all said cases the contract is not absolute for the payment of a certain amount, but is that the association shall levy an assessment and pay the proceeds thereof, not exceeding the amount named in the certificate to the beneficiary. Such cases are: Smith v. Covenant Mutual Benefit Ass’n 24 Fed. 685; Bailey v. Mutual Benefit Ass’n 71 Iowa 689; Newman v. Covenant Mut. Ben. Ass’n 72 Iowa 242; Burdon v. Mass. Safety Co. 17 N. E. Rep. 874; Eggleston v. Association 5 McCrary, 484; Curtis v. Mutual Benefit Life Company 48 Conn. 98.
“In most of said cases the question decided was the sufficiency of the allegations in the declaration or complaint at law, and if the contract here sued on was similar in its terms to the contracts on which the actions in said cases were brought, the decisions would be authorities in support of defendant in error’s second contention, which is that the demurrer was well sustained for the reason that the declaration does not aver that an assessment had been made and collected, or the number of members liable to assessment, and the amount that could have been made by an assessment.”

In the Abe Lincoln Mut. Life & Accident Soc. v. Miller, supra, the court held on page 346.

“But plaintiffs’ declaration is fatally defective; no sum is named in it, for which defendant became liable under the terms of the contract. The certificate referred to in the declaration is not a part of the declaration, and if it had been properly made a part thereof, the sum to be paid by plaintiff in error to the beneficiaries upon the death of Miller could be made definite and specific only by proper averments of facts showing that it was a duty of plaintiff in error to make assessments upon members; that such assessments would produce a sum to which plaintiffs became entitled, under the contract, to receive; in short the declaration should contain sufficient averments to show a cause of action; this it fails to do and the omission is not cured by the verdict, (Commercial Ins. Co. v. Treasury Bank, 61 Ill. 485), and may be taken advantage of by motion in arrest of judgment or in error. Kipp v. Lichtenstein, 79 Ill. 358, and cases therein cited.”

Even the cases cited are not in point under a certificate, which has no foundation for laying a legal assessment. In the case at bar there is no such foundation, and the society could only ask for a free will contribution or donation. The member in her policy waived or never had any legal claim.

Appellee cites Rockhold v. Canton Masonic Mut. Ben. Society, 129 Ill. 440; Railway Conductors Ben. Ass’n v. Robinson, 147 Ill. 138; Zeman v. North American Union, 263 Ill. 304; Martin v. Stubbings, 126 111. 387; Covenant Mut. Life Ass’n v. Ketner, 188 Ill. 431, and Metropolitan Acc. Ass’n v. Windover, 137 Ill. 417, as authority for the doctrine that in mutual and benevolent associations, upon the faith of a promise made by the society, a member may enforce the liability of the society and the burden of proof is upon the society to show by plea and proof any reductions to be made. We have examined all of these cases and the charter and by-laws upon which they are founded. In each case the liability of the society and its members is based upon an absolute promise to pay, which fixes a definite liability. In Martin v. Stubbings, supra, the contract of the association and the member was an express promise to pay and the court held:

“A mutual benefit society is not a life insurance company in the restricted sense in which that term is used in our statute in relation to life insurance companies, nor is a certificate of membership in such society a policy of life insurance in the same restricted sense of the term, yet it is manifest that such membership certificate is in the nature of a mutual life insurance policy. Commonwealth v. Wetherbee, 105 Mass. 161; State v. Benevolent Society, 72 Mo. 146; Supreme Commandery v. Ainsworth, 71 Ala. 436; Sherman v. Commonwealth, 82 Ky. 102; State v. Vigilant Ins. Co., 30 Kan. 585; State v. Northwestern Mutual Life Ins. Co., 16 Neb. 549; State v. Mutual Benefit Association, 18 id. 276; Illinois Masons’ Benevolent Society v. Winthrop, 85 111. 537; Illinois Masons’ Benevolent Society v. Baldwin, 86 id. 479; Niblack on Mutual Benefit Societies, 193. Such contracts are therefore subject to the rules of law governing life insurance policies, except so far as those rules must be held to be modified by the peculiar organization, objects and policy of such societies. ’ ’

In Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Robinson, supra, the court, construing the contract, said:

“There can be no doubt, we think, that the benefits provided for by the constitution and by-laws of the as-, sociation are in the nature of life insurance, and that the contract between the association and the member, evidenced by the constitution, by-laws and membership certificate, is, in substance, a policy of insurance upon the life of the member. See Rockhold v. Canton Masonic Benevolent Society, 129 Ill. 440, and cases cited. It is true the membership certificate bears upon its face no promise of indemnity, but it entitles the holder to membership in the association and to all rights that appertain thereto, and it is to be construed in connection with the constitution and by-laws, the same as though all of those documents were combined in one. Taken together, they constitute an undertaking on the part of the association, subject it is true to certain conditions which will be hereafter noticed, in case of the death of a member, on proper proof of his death, to levy and collect an assessment of $2.50' on each surviving member, and to pay the same over, to an amount not exceeding $2500, to a certain designated beneficiary or beneficiaries. This is clearly, in substance and effect, a contract of insurance, and an association organized for the purpose of entering into and performing contracts of that character, is in reality an insurance company.”

In Metropolitan Safety Fund Acc. Ass’n v. Windover, supra, the policy provided: “After reciting that, for certain considerations particularly enumerated, said association thereby issued said certificate to said George Windover in the principal sum of $1500, it was provided that said sum, less the amount of all weekly indemnity previously received, should be paid to Phoebe Windover whose relationship to said member was that of mother, or her legal representatives, within ninety days after satisfactory proofs should be received at the home office, setting forth that the memher, during the continuance of said contract, had sustained bodily injuries from external, violent or accidental causes, within the intent and meaning of said certificate and the conditions thereto annexed, and that such injuries alone had occasioned death within ninety days from the date of such accident. In a subsequent part of the certificate however is the follow-: ing: ‘Provided, that in case the amount realized from one full assessment of all the certificate holders liable should be insufficient to pay the face value of this certificate when, by reason of death, it shall become a claim, then the beneficiary herein shall accept the result of such assessment, less the amount of all weekly indemnity benefits previously received, as payment in full of all claims against the association under this certificate of membership.’ * * *

“The first point raised is, that under the evidence, the plaintiff, if entitled to recover at all, should have been allowed to recover only nominal damages. This contention is based upon the assumption that the contract evidenced by the membership certificate is merely to levy and collect one full assessment upon all the certificate holders of the class to which George Wind" over belonged, and to pay the avails of such assessment over to the plaintiff as the beneficiary named in the certificate, and that as it is impossible to establish by evidence the sum that would have been realized from such an assessment if it had been made, no substantial damages should have been awarded, the plaintiff’s proper remedy being in a court of equity by. a bill for a specific performance of the contract to levy and collect the assessment.”

In this case the court held that the beneficiary could recover the full sum of $1,500 mentioned in the certificate “unless the defendant has shown by its pleadings and proofs that the amount which would be realized by one full assessment on all the certificate holders liable, would have been insufficient to pay the face value of the certificate, in which case the amount of recovery should be abated. ’ ’

These cases and each of them present a different state of facts than the case at bar, where the appellant by the terms of its contract has relieved itself from all liability except in case of death or disability, and then only to ask for a contribution and each member, including the deceased, Mary E. Cedusky, has relieved himself and herself from all liability and agreed that any and all sums paid, of every kind, shall be merely voluntary gifts and donations. In none of the cases cited by appellee is the law as to gifts and donations construed. Counsel has brought to our attention some of the persuasive and alluring statements in the application, and argued their fraudulent purport and measures to defraud, unless this certificate is construed as a binding promise to pay. With this phase of the case we have nothing to do. It is an argument that should be presented to the legislature or the administration department that grants charters to such organizations. It is not the duty of courts to correct the morals of litigants.

Turning to the facts in this case, the certificate was based upon an application which represented that Mary E. Cedusky was born in 1860 and was therefore only 64 years of age at the time the certificate was issued, in July, 1924. Some of her own family, brothers and sisters, who had known her all her life, testified that she was born in 1852 or 1854 and that she was above the age of 70 years in July, 1924. The deceased was married at Suttons Bay, Michigan, on December 30,. 1874. The certificate of the priest who performed the marriage ceremony and the county court records of Leelanau county, Michigan, properly authenticated, were produced, showing the marriage of Mary E. Cedusky on December 30, 1874, and stating that she was nineteen years of age. If she, then, at her marriage, gave her age truthfully she must have been born in 1855 and would therefore have been 69 years of age in 1924.

On May 12, 1915, the deceased, Mary E. Cedusky, signed an application for insurance to the Prudential Insurance Company of America, stating that she was born on October 10, 1852, and was then 63 years of age. Appellee’s certificate of marriage in Champaign county, Illinois, was in evidence, showing that she was married on August 28,1895, and was twenty-one years of age. If the deceased, Mary E. Cedusky, was under 65 years of age on July 1, 1924, she must have been married at the early age of fifteen years. The records and the testimony of her relatives render the verdict finding the deceased was under 65 years of age on July 1, 1924, manifestly against the weight of the evidence. A son of the deceased, John Cedusky, testified that his mother lived with him from 1911 until she died; that during the later years of her life she suffered from bronchitis and asthma; that she coughed all the time; she was coughing and spitting out slime — all yellow slime — and that this condition had existed since 1917 and that during the two years prior to June 25, 1925, Dr. Christie had visited her about four times. Dr. Christie made out the proofs of death, under oath, on April 28, 1925, in which he stated that the remote cause of death was bronchitis from which she had suffered one year, and that the immediate cause of death was myocarditis. He stated that she had chronic bronchitis. While the issue of the delivery of the certificate to the member, while in good health, was not before the jury, and the issue of false representations as to being in good, sound health at the time of signing the application, could not have been before the jury, if the jury did not believe the deceased signed the application, still we cannot believe, in view of all the testimony and exhibits in this case that our construction of the certificate in question is distinctly an injustice to the appellee, nor that it deprives her of any of her vested rights. The appellant apparently is beyond the reach of courts in cases of this kind. The judgment of the circuit court of Champaign county will be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact to be incorporated in the judgment: The evidence does not show that the appellee has a right to recover on the benefit certificate involved in this case,


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    James Hubbard, Appellee, v. City of Wood River, Appellant.
    1. Nuisances — when smooth iee is classed among. Smooth ice, formed by water leaking from a pipe, covering for 10 feet a sidewalk 14 feet wide, and so remaining for 10 days, constitutes a nuisance.
    2. Highways and streets — when municipality is liable for not removing smooth ice from sidewalk. A city which allows smooth ice of some four inches depth, covering a distance of 10 feet on a public sidewalk 14 feet in width, to remain 10 days is liable to persons injured in consequence of its failure to exercise its ample power to abate such nuisance.
    3. Highways and streets — municipal liability to one slipping on smooth ice upon a sidewalk. A city may be liable for an accident caused by iee on a sidewalk, due to the negligence of its officials, even though the ice is slippery and not in hillocks and ridges.
    4. Highways and streets — when municipality must remove ice from a part of sidewalks. A duty is on a city to remove from a public sidewalk ice formed by accidental discharge of water thereon, the condition not being prevalent on the sidewalks at the time, within a reasonable time after notice of the condition, or after it could have been discovered by the exercise of reasonable care.
    5. Highways and streets — what effect upon recovery for injuries a pedestrian’s failure to leave slippery sidewalk for street has. One' injured by slipping on a public sidewalk of 14-foot width covered with iee for a distance of 10 feet is not guilty of such contributory negligence as to prevent his recovering damages from the 'city merely because he did not leave the sidewalk and go upon the street in order to avoid the ice.

      6. Highways and streets — pedestrian’s negligence in crossing icy sidewalk as jury question. Whether the iey condition of a sidewalk will charge a pedestrian with contributory negligence and lack of reasonable care for his own safety in going over it to that extent that he cannot recover damages for an injury suffered in so doing, is a question of fact for the jury.
    7. Instructions — refusal to give instruotion covered by others as not error. It is not error to refuse to give an instruction, which so far as it correctly states the law is covered by other instructions given for appellant.
    8. Damages — what verdict for broken humerus not excessive. A verdict of $1,950 as damages to one who broke his left humerus and loosened the clavicle in a fall on a slippery sidewalk, though he was justice of the peace in exercising which office a left arm was not necessary, and was without dependents, is not so excessive as to warrant a new trial.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    F. J. Manning and S. A. Bleisch, for appellant.
    Ferd Tunnell, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On January 29, 1926, appellee fell on the ice on a sidewalk in the City of Wood River at 56 West Ferguson Avenue. By the fall the neck of the humerus and the humerus of his left arm were broken and the clavicle was jarred loose from his shoulder. He recovered a verdict and judgment for $1,950.

Appellant has a water system and through its pipes furnishes water to its citizens for a consideration. The building at 56 West Ferguson Avenue is immediately adjacent to the sidewalk in question and is supplied with city water which is measured by a city meter at or within the said building. For several days prior to the injury the water leaked from a pipe in the building and flowed out over the sidewalk. The evidence on behalf of appellee is to the effect that the water which so escaped had been frozen upon the sidewalk' for 10 days prior to the day in question and the ice was three or four inches thick. The sidewalk was 14 feet wide and the ice extended from the building to the outer edge of the walk and was about 10 feet in width. The evidence tends to show that there was no snow or ice upon any of the other sidewalks in the said city. The weather had been cold for several days but not stormy except there had been a slight snow which had melted. William Price testified on behalf of appellee that on January 19, 1926, he went to the City Hall and notified the chief of police and the water commissioner that the water was running out on the sidewalk and freezing. He also testified that about a week prior to the accident he again notified the commissioner of the condition of the walk. The commissioner denied that he was notified by Mr. Price at any time, but the chief of police admitted that Mr. Price told him about the water, but he says it was only a day or two before the accident.

The conditions, as they existed at the time of the accident, and for 10 days prior thereto, were such as to constitute a nuisance. City of Muncie v. Hey, 164 Ind. 570, 74 N. E. 250. Appellant had ample power and authority to abate the nuisance and was liable to persons injured in consequence of its failure to exercise such power. City of Highland v. Auer, 235 Ill. App. 327. Appellant insists that mere slipperiness of a sidewalk, occasioned by ice and snow, is not such a defect as will make a municipality liable for damages thereby ensuing; that in order for a city to be liable for the icy condition of its sidewalk, it is necessary that the ice must be in the form of an obstruction to the sidewalk and must be in hillocks or ridges and that the city is not liable if the ice is perfectly smooth. Such cases as Barker v. City of Rockford, 239 Ill. App. 528, and the cases therein cited, are relied upon to sustain that contention. Appellant also insists that it is immaterial whether the slipperiness is caused by natural or artificial means. Some of the same Appellate Court cases are relied upon as supporting that claim.

Some of the cases cited hold that a city may be held liable if the ice is in hillocks or ridges but not if it is smooth. It is difficult to perceive the justice of applying this distinction in case of ice formed from water cast upon the walk by artificial conditions. A conductor pipe casting water onto a walk where it will freeze must, of necessity, render the walk defective, and it would seem that it should make no difference in the liability of the municipality whether, at the particular time, the ice was smooth or rough, assuming that the condition was a dangerous one. 13 A. L. R. 39.

. It is difficult to perceive the ground for such a distinction. Of course, the distinction is based on the rule that there is no liability in case of slippery walks caused by freezing rain, but why should that rule apply? The conductor pipe casting water onto the walk where it will freeze must, of necessity, render the walk defective, and it can make no difference in the liability of the municipality whether, at the particular time, the ice is smooth or rough. 58 L. R. A. 324. The liability of a city for injuries resulting from the accumulation of ice upon a sidewalk is not confined to the cases where the ice is in hills or ridges. A city may be liable for an accident caused by reason of the slippery condition of its streets caused by the negligence of its officials, even where the ice and snow do not form into hills and ridges. Holbert v. City of Philadelphia, 221 Pa. 266, 70 Atl. 746; Magaha v. Hagerstown, 95 Md. 62, 51 Atl. 832; Boyland v. City of Parkersburg, 78 W. Va, 749, 90 S. E. 347.

The courts are quite well agreed that if a leader is constructed from the eaves trough of an adjoining building in such a way, or is so defective, as to cast water upon the walk, the municipality is liable for injuries caused by ice resulting from the freezing of such water. 13 A. L. R. 37. Where a sidewalk is in fact rendered dangerous by slippery ice formed from accidental or incidental discharge of water thereon, such not being the prevalent condition of the sidewalks at the time, it is the duty of the city to cause the danger to be removed within a reasonable time after it has notice, or by the exercise of reasonable care can discover its condition. Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523, 61 S. W. 859.

In the case at bar the icy condition of the sidewalk in question was not caused by the freezing of falling rain or snow. A nuisance had existed for several days and under the evidence the jury were fully authorized in finding that appellant had notice thereof for' at least 10 days before the accident. Appellant should have abated the nuisance. It also had control of its streets and sidewalks and it was its duty to exercise reasonable care to keep them in a reasonably safe condition for the use of the public. The street in question was the main street„of the city and the place of the accident was within two blocks of the City Hall. This is not a case where all of the sidewalks of the city were icy because of freezing rain or snow. We cannot agree with those cases which hold that where water is cast upon a sidewalk, as in this case, and freezes, there may be a liability if it forms into hills or ridges but no liability if the ice so formed is smooth. In a case of the same general nature we held the city liable. Loyd v. City of East St. Louis, 235 Ill. App. 353.

Appellant contends that appellee should not be allowed to recover because he was guilty of contributory negligence in attempting to pass over the ice in question. The ice extended from one side of the walk to the other, a distant of about 14 feet, and was about 10 feet in width. We are not prepared to say that it was the duty of appellee to leave the sidewalk and go out into the street in order to avoid the ice. It was his duty, however, to exercise reasonable care and caution for his own safety while attempting to cross the ice. It has been held that mere knowledge of the icy condition of a sidewalk is not sufficient, as a matter of law, to charge a pedestrian with contributory negligence in passing over it, but that is a question of fact for the jury. Holbert v. City of Philadelphia, supra. It is argued that the court erred in refusing an instruction offered by appellant. In so far as the instruction contains an accurate statement of the law it was fully covered by other instructions given for appellant. No complaint is made in regard to the instructions given for appellee. Eight instructions were given on behalf of appellant. The jury was fully and fairly instructed.

It is finally argued that the verdict was excessive. It is said that appellee has no dependents; that it was his left arm and shoulder that were injured; that he was a justice of the peace, the duties of which office required no physical exertion and could readily be performed by a one-arm man; that the jury must have awarded him the amount they did solely for a broken arm and collar bone and the inconvenience and pain suffered while the members were reuniting. We would not be warranted in holding that the verdict is so excessive as to require that a new trial should be granted. No reversible error having been pointed out the judgment is affirmed.

Affirmed.


text:
    A. G. Stanford, Appellee, v. L. N. & R. News Company, Appellant.
    1. Appeal and EEROR^necessiti/ of attaching assignment of errors to the record. Unless the assignment of errors is written on or attached to the record as required by the rule of the Appellate Court, there can be no joinder in error and no issue to be tried by the Appellate Court, and this requirement is not waived' by failure to object.
    2. Appeal and error — when errors may not he assigned upon the record. After a cause has been submitted to the Appellate Court for final determination, it is too late for the appellant to secure leave to assign errors upon the record, and too late for the court to require him to do so.
    3. Appeal and error — when hill of exceptions filed too late not part of record. A bill of exceptions not filed until after the time allowed for filing is not properly a part of the record.
    Appeal by defendant from the Circuit Court of Clay county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the March term, 1927.
    Appeal dismissed.
    Opinion filed May 14, 1927.
    Wilson & Wilson, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

No assignment of errors has been written upon or attached to the record as required by Rule 15 of this court. The requirement, that upon appeal or writ of error there must be an assignment of errors written upon or attached to the record, is not a mere matter of form to be considered waived if not objected to, but one of substance. The assignment of errors performs the same office in this court that a declaration does in a court of original jurisdiction, and is equally essential in the forming of an issue upon which the court can properly give judgment. It is not sufficient that the abstract of the record shows an assignment of errors which is not written upon or attached to the record. No errors having been assigned on the record, there is and can be no joinder in error, and, therefore, no issue in this court to try.

The cause having'been submitted for final determination, it is now too late for appellant to obtain leave to assign errors upon the record or for the court to require it to do so. The failure to assign errors on the record necessitates a dismissal of the appeal even though alleged errors are argued in the briefs. We have frequently called attention to the fact that it is essential that the assignment of errors must be written upon or attached to the record, and unless it is there is nothing for this court to consider. McAllister & Schroeder v. Weber Motor Car Co., 243 Ill. App. 530, and cases cited therein.

We would call attention to the fact that at the close of the common-law record the clerk of the circuit court certifies, “The above and foregoing to be a true, perfect and complete copy of all of the proceedings at the September Term, A. D. 1926, in a certain cause then pending in said court on the common law side thereof, wherein A. Gr. Stanford is plaintiff and L. N. & E. News Company, a corporation, is defendant, etc.”

Following that certificate is what purports to be a bill of exceptions, but the same is not certified as a part of the transcript of the record. It may or may not be the original bill of exceptions. On the first page thereof, after the title of the case, we find the following statement: “Be it remembered, that upon the 15th day of February A. D. 1927 there was filed in the office of the clerk of the circuit court of Clay county, Illinois, a bill of exceptions in the case of A. C. Stanford v. L. N. & R. News Company, a corporation, which said bill of exceptions is as follows* that is to say”:

The purported bill of exceptions shows that it was presented to the trial judge on October 19, 1926, and was signed by him on November 29, 1926. The judgment was rendered on September 24, 1926, and the common-law record shows that 60 days were allowed for the filing of a bill of exceptions. In the purported bill of exceptions there is a statement that 90 days were allowed for the filing of the bill of exceptions. If it was not filed with the clerk of the circuit court until February 15, 1927, it is not properly a part of the record. Zbinden v. DeMoulin, 243 Ill. App. 509. In the state of the record there is no issue for this court to try and the appeal is dismissed at appellant’s costs.

Appeal dismissed.


text:
    St. Louis Union Trust Company, Appellee, v. Wabash, Chester & Western Railroad Company et al. Illinois Central Railroad Company and Yazoo & Mississippi Valley Railroad Company, Appellants.
    1. Railroads — what claims are part of the operating expenses. Claim of a railway company for interline freight, per diem, traffic claims and miscellaneous bills, against a railway company in the hands of a receiver for interline freight, collected by the latter road and due the claimant, and traffic claims and miscellaneous bills are to be considered as part of the operating expenses of the receiver.
    2. Railroads — what debts are prior to a mortgage upon. Operating expenses of a practically insolvent railway company incurred to other railway companies by a mortgagee in possession with the consent of the mortgagor should be made a lien on the property prior to the mortgage.
    3. Railroads — operating expense claims as charge upon railway property. That no net income is produced by a railway under operation of a mortgagee with consent of the mortgagor, will not prevent just claims for operating expenses being macle a charge upon the property itself.

      4. Railroads — when, operating expense claims are not defeated by foreclosure of property of. Bondholders of an insolvent railroad company, in possession and operating it and receiving the income of connecting carriers, will not be permitted to defeat recovery by such connecting carriers of their earnings, by foreclosure and sale of the railway property securing the bonds.
    Appeal by defendant from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed May 14, 1927.
    Charles E. Feirich and Edward C. Craig, for appellants ; W. S. Horton, of counsel.
    Geo. B. Gillespie, for appellee; Gillespie & Gillespie, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee filed a bill to foreclose a mortgage upon the property of the Wabash, Chester & Western Railroad Company and a receiver was appointed on January 4, 1924. In 1920, the Southern Gem Coal Corporation became the owner of 90 per cent of the capital stock of the mortgagor, and $390,000 of the bonds secured by the mortgage in question. Mr. C. B. Cole and his associates were the owners of the remainder of the mortgage indebtedness, namely, $300,000. From that time until the appointment of the receiver Mr. Cole was president of the railroad company and the road was operated by the Southern Gem Coal Corporation. The railroad company was insolvent during all of that time. While the road was being operated by the Southern Gem Coal Corporation with the knowledge and consent of Mr. Cole and his associates an indebtedness accrued to the Illinois Central Railroad Company of $126,165.87. The greater portion of that amount was for interline freight where the operators of the railroad collected money that was due and owing to the Illinois Central. The other items of the account consist of per diem traffic claims and miscellaneous bills. The entire claim would be considered as necessary operating expenses. During the same period a similar claim accrued to the Yazoo & Mississippi Valley Railroad Company to the amount of $3,063.52.

The operation of the Wabash, Chester & Western Railroad Company has been a losing proposition from the date of its organization. It has never earned dividends for its stockholders and has been able to pay interest on the mortgage but for one or two years. From the time the Southern Gem Coal Corporation took over the operation of the railroad in 1920 there has been no net income.

After the appointment of the receiver appellants filed intervening petitions setting out the facts and asking the court, on several theories, to enter an order allowing their claims and making them a lien upon the property of the Wabash, Chester & Western Railroad Company, prior and superior to the rights and claims of the bondholders, the Southern Gem Coal Corporation and Mr. Cole and his associates. Upon a hearing the court found that the indebtedness to the appellants accrued and is due and owing from the mortgagor, but .that no net income had been earned and that no portion of their claims should be made a prior lien to that of the mortgage, and the petitions were dismissed at appellants’ costs.

If a receiver had been appointed in 1920 and the claims of appellants had accrued while the receiver was operating the railroad there can be no question that such claims would be considered as a part of the operating expenses of the receiver, and no net income having been earned, it would have been proper for the court to make the claims a charge upon the corpus and a prior lien to that of the mortgage indebtedness. St. Louis A. & S. R. Co. v. O’Hara, 177 Ill. 525; Knickerbocker v. McKindley Coal & Mining Co., 172 Ill. 535; Knickerbocker v. Benes, 195 Ill. 434; Equitable Trust Co. of New York v. Chicago, P. & St. L. R. Co., 223 Ill. App. 445; Whitaker v. Irons, 206 Ill. App. 124.

That being true, we are at a loss to understand why the claims in question should not be given priority over those of the bondholders. One of the bondholders, The Southern Gem Coal Corporation, with the consent of all the other bondholders, Mr. Cole and his associates, and with the consent of the mortgagor, was in possession of and operating the railroad during the time that the claims in question accrued. That the claims are of such a character as would be considered operating expenses, there can be no serious question. St. Louis Union Trust Co. v. Texas Southern R. Co., 59 Tex. Civ. App. 157, 126 S. W. 296; Jackson Coal & Coke Co. v. Phillips Line, 114 Va. 40, 75 S. E. 681.

It seems to us that it would be highly inequitable and unjust to permit a mortgagee in possession of the mortgaged property to operate that property and incur a large amount of indebtedness and having done so to then say to the creditors that the mortgage is a prior lien; that the property is not worth the amount of the mortgage indebtedness; and that nothing should be paid to them. We are of the opinion that a mortgagee who takes possession of the property and operates it is in no better position than if a receiver had been appointed and the road operated by him. Operating expenses, whether incurred by a receiver under the order of the court, or by a mortgagee in possession with the consent of the mortgagor, should be made a lien on the property prior to the mortgage.

It is quite evident that all of the bondholders were willing for one of their number to operate the railroad and keep it a going concern. The fact that no net income was produced by the operation of the road in that manner ought not to deprive appellants of the money that accrued to them during that time.

Where a railroad was operated by two of the bondholders on behalf of themselves and their associates, the court held that the operating expenses which accrued during the time they so operated the railroad should be made a prior lien to that of the mortgage. The court said: “No authority has been cited or principle of equity suggested by counsel for complainant that will permit the bondholders of an insolvent railroad company who are themselves in possession of its property, operating the road and receiving- the earnings of connecting carriers, as was done in this case, to defeat recovery by connecting carriers of such earnings by a foreclosure and sale of the mortgaged property securing the bonds.” Central Trust Co. of Illinois v. Chicago, A. & N. Ry. Co., 232 Fed. 936.

Appellee contends that the case last cited is not applicable. While the facts in that case are somewhat different from those of the case at bar, yet we think the principle there recognized is just and equitable and should control. It is also argued that for certain reasons appellants should be estopped from claiming priority. We find nothing in the evidence that would warrant us in holding that appellants should be barred by estoppel.

Other points are raised and ably discussed by counsel for the respective parties, but in our view of the case it will be unnecessary to further extend this opinion. The decree will be reversed and the cause remanded with directions to enter a decree making the claims of appellants liens upon the property of the mortgagor prior and superior to the lien of the mortgage sought to be foreclosed by appellee. The decree should provide that there should be no priority of the claim of one of the appellants over the other.

Reversed and remanded with directions'.


text:
    Mabel A. Little, Executrix of the Estate of Robert M. Little, Appellee, v. Blue Goose Motor Coach Company, Appellant.
    1. Pleading — when special plea in abatement is too late. A special plea that an amended declaration stated a new cause of action which had abated because of the death of the original plaintiff was pleaded too late after trial.
    2. Death by wrongful act — right of action at time of death as essential to survival. Under Cahill’s St. eh. 70, HI, providing that an action for injury shall not abate by the death of the claimant, the claimant must have had a right of action at the time of his death and if he has before then secured judgment or had judgment rendered against him or settled the cause, or judgment is found against him in a case on the same cause of action wherein his opponent is the plaintiff, then no action survives to the claimant’s representatives.
    3. Death by wrongful act — judgment against claimant as barring action by his representatives. A judgment for or against a plaintiff in an action to recover for personal injury is a bar to a subsequent action by his representative for his death as due to said injury.
    4. Death by wrongful act — when judgment in another action bars remedy. In an action by the owner of a bus against an automobile owner for damages caused by a collision, a judgment in favor of the plaintiff is necessarily a finding of plaintiff’s freedom from negligence and is therefor conclusive in a subsequent action against the plaintiff therein to recover for the wrongful death of the defendant therein from injuries incurred in the same accident.
    5. Pleading — when special plea need not state how the jurisdiction of county court to entertain appeal from justice of the peace was obtained. In absence from a special plea alleging judgment against the plaintiff on the same cause of action but in another case in justice court, of anything to sho'w that the appeal bond was not approved by the justice, the Appellate Court will not presume that the county court was without jurisdiction when it dismissed the appeal for want of prosecution.
    6. Courts — what is the jurisdiction of county. County courts in this State are courts of general jurisdiction over all matters within purview of their jurisdiction, in favor of which every presumption will be indulged.
    7. Pleading — proper way to attack special plea of untrue facts. If the facts averred in a special plea are not true, the plaintiff should reply thereto instead of demurring.

      8. Death by wrongful act — when special plea of former judgment is good against action by representative for. In action for death of plaintiff’s decedent from injuries due to his automobile colliding with defendant’s bus, the court should have overruled a demurrer to a special plea alleging that the same cause of action had been decided against decedent in another ease in his lifetime and he had never perfected appeal therefrom.
    9. Evidence — when medical experts’ testimony is inadmissible. In view of a controversy over whether one injured in an automobile collision suffered, as a result thereof, heart disease which caused his death, the evidence of medical experts that such injury did cause heart disease and death should not have been admitted over objection.
    Appeal by defendant from the City Court of East St. Louis; the Hon. Silas M. Cook, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed May 14, 1927.
    A. M. Fitzgerald and H. C. Moore, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On November 1, 1925, Dr. Robert M. Little, while driving his Overland sedan at the intersection of Ridge Avenue and Twenty-seventh Street in East St. Louis, collided with a bus owned and operated by appellant. A few days later appellant sued Dr. Little before a justice of the peace, and recovered a judgment for the damages occasioned to its bus by the said collision. Defendant appealed to the county court,and the appeal was dismissed for want of prosecution. On December 1, 1925, Dr. Little sued appellant in the city court to recover damages for personal injuries alleged to have been suffered by reason of the collision aforesaid. The plaintiff died while the jury deliberated upon its verdict. The death of the plaintiff was suggested and the jury discharged.

Mabel A. Little, his widow, was then appointed executrix of his last will and testament. As such executrix and by leave of court she filed a new declaration based upon section one of the Injuries Act, Ca-hill’s St. ch. 70, IT 1. Appellant pleaded the general issue and upon a trial of the cause there was a verdict for three thousand ($3,000.00) dollars which the court set aside. Appellant then filed its first special plea to the effect that it had sued Dr. Little before a justice of the peace and recovered a judgment against him for the sum of $139.35 on account of the damages caused to its bus; that an appeal was taken from said judgment to the county court which, on April 2, 1926, was dismissed for want of prosecution, etc. A demurrer to that plea was sustained.

Appellant filed its second special plea to the effect that by the original declaration Dr. Little sought to recover damages for personal injuries; that he died on May 25, 1926; that by reason thereof his cause of action abated; that the amended declaration is upon an entirely new and different cause of action, etc. To that plea a demurrer was interposed and sustained. Appellant also moved the court to strike the amended declaration from the files and the-motion was denied. The cause was again tried and resulted in a verdict and judgment for five thousand ($5,000.00) dollars.

Dr. Little died on May 25,1926, and on that day his death was suggested upon the record. On September 22, 1926, leave was given to substitute appellee as plaintiff and to file an amended declaration. Appellant was given three days within which to file objections to the granting of such leave but no objections were filed. To the new declaration appellant, on November 19, 1926, pleaded the general issue. On November 26, 1926, appellee was granted leave to file an additional count and on December 1, 1926, appellant extended its general issue thereto. The cause was tried and a verdict in favor of appellee was returned on December 15, 1926. A new trial was granted on December 20, 1926. The second special plea and the motion to strike the amended declaration were not presented to the court until the cause was again called for trial on January 24,1927. The question sought to be raised by the second special plea 'and the motion aforesaid did not go to the merits of the case but was ' matter in abatement of the suit and should have been availed of before pleading the general issue. After pleading to the merits and after a trial of the cause it was too late to plead in abatement. The court did not err in sustaining the demurrer to the second special plea.

■ Appellee bases her right to recover upon section one of the Injuries Act, Cahill’s St. ch. 70, ¶1. By the express terms of that statute no action will lie unless the deceased could have recovered for the wrongful act in case his death had not ensued. Hackett v. Smelsley, 77 Ill. 109. If Dr. Little was injured by the wrongful act, neglect or default of appellant, he had a cause of action by virtue of the common law which was completely under his control so long as he lived. If, at the time of his death, anything had occurred that would bar a recovery by him appellee has no cause of action under the statute.

Any one of several things may occur after an injury and before the death of the injured person that will prevent the accrual of a statutory cause of action. If the injured person recovers a judgment; if he settles his cause of action; if he brings a suit to recover for his injuries and a judgment is rendered against him, or if he is sued by the other party for damages alleged to have been caused by the wrongful act, neglect or default of the said injured person, and such party so suing recovers a judgment, there would be no cause of action under section one of the Injuries Act.

If Dr. Little had released his cause of action before his death the statute would not confer any right upon appellee to recover. Her right to sue for damages depends, under the statute, upon the deceased having a right of recovery for his injuries at the time of his death, as there is but one cause of action and can be but one recovery. Mooney v. City of Chicago, 239 Ill. 414. It is the general rule that the statutory cause of action is a right dependent upon the existence of a right in the decedent, immediately before his death, to maintain an action for his wrongful injuries. Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59.

As a general rule the statutory action is a right dependent upon the existence of a right in the decedent, immediately before his death, to have maintained an action for his wrongful injury, and it is upon this principle that it is generally held that a release or accord and satisfaction, or a prior recovery by deceased in his lifetime, constitutes a defense to the statutory action for the death. 17 C. J. 1201. It is almost everywhere held that a recovery by a decedent for personal injuries to ‘him is an absolute bar to the subsequent maintenance of an action under the statute for his death, 17 C. J. 1250; 39 A. L. R. 579, and a final valid judgment on the merits denying a recovery has a like effect. 17 C. J. 1250.

Appellee insists that the demurrer to the first special plea which set up the recovery of the judgment before the justice of the peace was properly sustained for several reasons. She argues that the plea contains inconsistent matters. None of her special grounds of demurrer raised that point. In any event there is no such inconsistency as would invalidate the plea. It is next urged that the demurrer was properly sustained because the second count of the declaration charged wilful negligence on the part of appellant.

Before appellant could recover for the damages to its bus it had to prove that it was not guilty of any negligence that contributed to its loss and damage and that the negligence of Dr. Little was the proximate cause of the damage to its bus. The rendition of the judgment by the justice of the peace necessarily determined those questions in favor of appellant. The question as to whether appellant was guilty of any negligence, wilful or otherwise, which caused or contributed to the injury to the bus was necessarily passed upon and decided contrary to the contention of appellee.

It is argued that the law is well settled that a justice of the peace has no jurisdiction of an action to recover damages for the injuries to the person and that a judgment in such a case is a nullity and cannot be pleaded as an estoppel. The justice did not undertake to pass upon such a question as the one suggested and for that reason we fail to discover any force in that line of argument. Appellee concedes, and properly, that a justice of the peace has jurisdiction of an action to recover damages to personal property.

It is finally argued that the first special plea conclusively shows that the appeal was taken from the judgment of the justice of the peace by filing an appeal bond with the clerk of the county court, instead of with the justice, and that it does not appear that any summons from the county court was served on Dr. Little or that he entered his appearance in said court; that without the service of summons or the entry of an appearance, the county court was without jurisdiction to dismiss the appeal. We find no averment in the plea which would authorize the presumption that the appeal was perfected by filing a bond with the clerk of the county court instead of its being approved by the justice of the peace. In the absence of such an averment we would not be authorized to presume that the county court was without jurisdiction when it dismissed the appeal for want of prosecution. Every presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction. County courts, in this State, are courts of general jurisdiction in respect to all matters coming within the purview of their jurisdiction. Matthews v. Hoff, 113 Ill. 90.

We think it sufficiently appears from the averments of the first special plea that the justice of the peace necessarily found that appellant was guilty of no negligence, wilful or otherwise, which in any way contributed to the injury of its bus and that the said injury was caused by the negligence of Dr. Little. That being true, if the said judgment remains in full force and effect as shown by said plea, it necessarily follows that Dr. Little was not entitled to recover for personal injuries alleged to have been caused by the negligence of appellant. If the facts averred in the plea are not true, appellee should have replied thereto instead of demurring. The court erred in sustaining the demurrer to the first special plea.

Dr. Little testified in the original case, and on the last trial appellee put his testimony in evidence. He testified that in the collision he received a contusion on his chest which was caused by being thrown against the steering wheel of his car; that the injuries so received caused pericarditis and myocarditis — an inflamation of the covering of the heart. The collision occurred on November 1, 1925, and the doctor died May 25, 1926. Appellant contended that under the evidence the doctor could not have been thrown against the steering wheel and that he could not have been injured in the manner claimed, and produced some evidence to the effect that such an injury ás he said he had received would result in immediate death, or death within six or eight weeks.

The court permitted medical experts called by appellee to testify, over objections, that the injury caused myocarditis and that the death of the deceased resulted from the injury. In view of the fact that there was a controversy as to those matters the evidence aforesaid should not have been admitted. Fellows-Kimbrough v. Chicago City Ry. Co. 272 Ill. 71. For the reasons aforesaid the judgment is reversed and the cause remanded with directions to overrule the demurrer to the first special plea.

Reversed and remanded with directions.


text:
    Myrtle Smith, Appellee, v. Harry Redman and Fred Leber, trading as Majestic Theatre, Appellants.
    1. Pleading — improper methods of testing declaration’s legal sufficiency. A motion to exclude the evidence and for a directed verdict is not a proper method of questioning the legal sufficiency of the declaration as a pleading.
    2. Pleading — when declaration’s failure to aver defendant had notice of defective structure waived. Pleading to the merits in an action for negligently causing plaintiff’s injuries waives the objection that the declaration fails to aver that defendant had notice of the alleged defect and that plaintiff was without notice thereof.
    3. Trial — verdict for plaintiff as curing defect in declaration. Failure of a declaration for personal injury from a. defective appliance to state how the same was defective or why dangerous is cured by verdict.
    4. Trial — verdict for plaintiff as curing defect in declaration. Failure of a declaration for personal injury from a defective appliance to aver notice of the defect by defendant or want thereof by plaintiff is a demurrable error which is cured by verdict.
    5. Appeal and error — what objections to instructions will not be heard. Appellants cannot on appeal object to instructions to which they failed to object before the trial court.
    6. Saving questions for review — failure to object to instructions in motion for new trial as waiving right to object on appeal. One who particularly specifies the grounds on which he relies in his motion for a new trial and does not state among them his objections to instructions given, waives his right to object on appeal to the giving of the instructions.
    7. Saving questions for review — sufficiency of general statement of grounds for new trial. A general statement of grounds for new trial, following specific, in the words “And for other good and sufficient reasons to be assigned at the time this motion is argued” will not supply the omission of a particular objection relied on by the moving party.

      Appeal by defendants from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Kramer, Kramer & Campbell and R. E. Costello, for appellants.
    J. J. Bullington and Oakley, Frank & Jackson, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a verdict and judgment for $2,000 for injuries alleged to have been sustained when the seat in which she was sitting in appellants’ theater collapsed and she was thrown to the floor.

Appellants contend that the declaration does not state a cause of action because it does not aver that they had knowledge of the alleged defective condition of the seat or that by the exercise of reasonable care they would have known of such defective condition. They also insist that there is no proof in regard to those matters. They pleaded the general issue. Had they desired to question the sufficiency of the declaration they should have demurred and abided by their demurrer. A motion to exclude the evidence and for a directed verdict is not a proper method of questioning the legal sufficiency of the declaration as a pleading. Swift & Co. v. Rutkowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146.

Pleading to the merits in an action for negligence waives the objection that the declaration fails to aver that defendant had notice of the alleged defect and that plaintiff was without notice thereof. Ide v. Fratcher, 194 Ill. 552; Linguist v. Hodges, 248 Ill. 491. Failure of a declaration to state in what respect the alleged defective appliance was defective or why its condition was dangerous is cured by verdict. Failure of a declaration for personal injury, caused by an alleged defective appliance, to aver notice of the defect by the defendant or want of notice by the plaintiff, although good ground for demurrer, is cured by a verdict. Sargent Co. v. Baublis, 215 Ill. 428.

It has been held, however, that the proprietor of a hall to which the public is invited is bound to use ordinary care and diligence to put and keep the hall in a reasonably safe condition for persons attending in pursuance of such invitation, and if he neglects his duty in this respect so that the hall is in fact unsafe, his knowledge or ignorance of the defect is immaterial. Currier v. Boston Music Hall Ass’n, 135 Mass. 414. That case was cited with approval in Hart v. Washington Park Club, 157 Ill. 9. In the state of the record it is unnecessary for us to decide whether the doctrine of res ipsa loquitur is applicable. In cases of this general nature some courts hold that the doctrine aforesaid applies, while other courts hold to the contrary. 22 A. L. R. 617.

Appellants contend that the court erred in the giving of instructions on behalf of appellee. That question is not open to consideration because it was not brought to the attention of the trial court. Appellants filed a motion for a new trial in which they specified eight particular grounds and added another as follows: “And for other good and sufficient reasons to be assigned at the time this motion is argued. ’ None óf the specific grounds set out in the motion pertain to the instructions given on behalf of appellee. One who files points in writing in support of his motion for a new trial, particularly specifying the grounds on which he relies, waives his right to avail of errors on appeal not mentioned therein. A general statement of grounds for a new trial, in the words “various other reasons apparent of record,” will not supply the omission of a particular specification upon which the moving party relies. West Chicago St. R. Co. v. Krueger, 168 Ill. 586. The rule is different where a motion for a new trial does not set out specific grounds. Yarter v. Chicago & A. Ry. Co., 235 Ill. 589.

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

Affirmed.


author: Mr. Justice Boggs

text:
    Lawrence Berkel, Appellant, v. William J. Schmitt, Appellee.
    1. Forcible entry and detainer — when limit on filing appeal bond does not apply. Under Cahill’s St. eh. 57, H 19, providing a 5-day limit for filing an appeal bond in forcible entry and detainer eases, the limitation does not apply in cases originating before a justice of the peace which have been appealed to the county court, from which the appeal is taken.
    2. Forcible entry and detainer — proper hill of exceptions as necessary to appeal from county court order. An appellant from the county court cannot have reviewed the order of that court dismissing his appeal from a justice court judgment in forcible entry and detainer after failing to present and have signed a bill of exceptions, where he claims the ground urged for dismissal was waived by agreement of the parties.
    3. Forcible entry and detainer — requirement of filing fee on appeal not waived hy an agreement of parties. An agreement between the parties to a forcible entry and detainer case on appeal to the county court from justice court judgment that it should be transferred from, the law to the probate side of the court cannot waive the requirement of payment of the filing fee on appeal which is necessary to perfect an appeal.
    Appeal by plaintiff from the County Court of Gallatin county; the Hon. W. S. Sanders, Judge, presiding.
    Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    W. R. McKernon, for appellant.
    W. S. Phillips and Bartley & Bartley, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Appellee instituted a forcible entry and detainer proceeding against appellant before a justice of the peace of Gallatin county for the recovery of the possession of certain real estate. A trial was had, resulting in a judgment in favor of appellee for possession of the premises involved in said proceeding. Appellant prayed an appeal to the county court of said county. The appeal bond was fixed in the sum of $1,000, and the same was filed by appellant and was approved by said justice within 20 days after the rendition of said judgment.

The record discloses that, by agreement of appellant and appellee, an order was entered transferring said cause to the probate side of the county court, and the cause was set for trial December 9, 1926. On said date, the following order was entered by said probate court:

“Appeal dismissed because appeal was not perfected within the time required by law, to wit: Filing fee not paid within twenty days. Appeal dismissed, procedendo to issue.”

Appellant prayed an appeal to this court, and the court entered an order fixing the appeal bond at $1,000, to be presented within 60 days, and bill of exceptions within 90 days. The appeal bond was filed on the 18th day of December, 1926, and was approved by the county court on said date, being nine days after the rendition of said judgment. No bill of exceptions was filed in the case. A motion is made in this court by appellee to dismiss said appeal, for the reason that the appeal bond was not filed and approved within "five days from the date of the order dismissing the appeal.

Cahill’s St. ch. 57, ¶ 19, provides:

“If any party shall feel aggrieved by the verdict of the jury or decision of the court, upon any trial had under this Act (Forcible Entry and Detainer Statute), such party may have an appeal, to he taken to the same courts, in the same manner and tried in the same way as appeals are taken and tried in other cases. Provided, the appeal is prayed and bond is filed within five (5) days from the rendition of the judgment.”

This court, in construing said statute in Vincent v. Laurent, 165 Ill. App. 397, at page 399, said:

“Upon a consideration of sections 18, 19 and 20 of the act entitled ‘Forcible Entry and Detainer’ we conclude that the proviso in section 18, requiring, in case of appeal, that the appeal shall be prayed and bond filed within five days from the rendition of the judgment, applies to judgments rendered on the original trial whether in a court of record or before a justice of the peace, and has no application to the filing of the bond for an appeal to this court where the suit originated before a justice, and we concur in the reasoning and conclusions reached in Davis v. Hamilton, 53 Ill. App. 94, and Ehlert v. Security and Safety Deposit Company, 72 Ill. App. 59. This cause originated before a justice of the peace where a judgment was rendered against appellant. She there prayed an appeal to the Circuit Court and filed her bond within five days in compliance with the proviso in section 18, supra, which brings the case within the rule laid down in the cases above cited. The motion to dismiss the appeal will be denied.”

Following the rule laid down in that case, the motion to dismiss the appeal will be denied.

Counsel for appellant concedes that the filing fee on the appeal to the county court was not paid, and that the payment of said fee within the time specified by statute is necessary in order to perfect the appeal, but insists that the parties waived the payment of such fee by agreeing to transfer said cause from the law side to the probate side of the county court, and fixing the time for the trial for December 9, 1926.

Appellant is in no situation to have reviewed the order of the court dismissing said appeal, for the reason that he failed to present and have signed a bill of exceptions. People ex rel. Shriver v. Cowen, 283 Ill. 308-312; People ex rel. Williams v. Glasgow, 301 Ill. 394; People ex rel. Naftzger v. Arnett, 317 Ill. 425. In the latter case, the court at page 426 says:

“Appellant has filed no bill of exceptions with the record. The common law record, only, has been filed. An examination of the record discloses that the clerk of the trial court has copied into the common law record the motion of appellees to set aside the order permitting the filing of the information and to dismiss the petition therefor, together with the affidavits filed in support thereof. No certificate of the trial judge appears in connection therewith. It has been many times held by this court that motions of this character made by the parties in a proceeding at law, and the rulings of the court thereon, are not parts of the common law record but must be preserved by bill of exceptions.” Citing People v. Weston, 236 Ill. 104; People ex rel. Williams v. Glasgow, supra; People v. Levin, 313 Ill. 588.

Even if a bill of exceptions had been filed, disclosing an agreement as above contended for, it would not waive the provision with reference to the payment of the filing fee. In Conklin v. Tobey, 224 Ill. App. 142, the court at page 145, in discussing this question, says:

“Since that amendment (amendment of 1919), the payment of the fee is one of the requisites to an appeal and is just as necessary as it is to file the bond. To construe the amendment as contended by appellant would be to nullify the amendment and leave the statute substantially the same as it was before the amendment was passed. The legislature had the right to determine the conditions on which appeals shall be taken, and after a method has been provided, a party to avail himself of the right to appeal must conform to the conditions prescribed by the statute.” Citing Kemper v. Town of Waverly, 81 Ill. 278; Coal Belt Elec. Ry. Co. v. Kays, 207 Ill. 632; Drainage Com’rs of Town of Niles v. Harms, 238 Ill. 414.

For the reasons above set forth, the judgment of the county court will be affirmed.

Judgment affirmed.