author: Mr. Presiding Justice Crow

text:
    Halla Matthew Carder, Appellee, v. Edna P. Matthew Hughett et al. Edna P. Matthew Hughett and John Hughett, Appellants. O. R. Matthew, Appellee, v. Edna P. Matthew Hughett et al. Edna P. Matthew Hughett and John Hughett, Appellants.
    Gen. No. 7,996.
    1. Covenants — when run with land. A recital in a deed from father to daughter to the effect that the grantee “is to pay” to the grantor, during his natural life, the sum of $500 per year, and thereafter “is to pay” to two other children of the grantor $200 each per year during the natural life of each, held to express a covenant on the part of the grantee to make such payments, which operated as a charge upon the land upon her acceptance of the grant followed by entrance into possession of the premises.
    2. Covenants — when provision construed as, rather than as a condition. Where it is doubtful whether a clause in a deed was intended as a condition subsequent or as a covenant, it will be construed as a covenant, the law favoring such a construction of conveyances as vest estates rather than defeat them.
    Appeal by'defendants from the Circuit Court of Cass county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    L. P. Harries and L. A. Cranston, for appellants.
    Charles A. G-ridley, for appellees.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

On May 10, 1910, Rodney H. Matthew, a widower, owned in fee simple an improved farm of 160 acres in Cass county and resided thereon with his married daughter, Edna P. Matthew Hughett, and her husband, the appellant. He owned no other real estate and no other property except a horse and buggy and some personal effects. His family then consisted of the appellant, Halla Matthew Jones (now Halla Matthew Carder, an appellee), and his sons, O. R. Matthew, an appellee, and Leonidas Matthew.

On that date the father executed a warranty deed on a statutory form conveying all of his real estate to Edna P. Matthew Hughett for a stated consideration of “the sum of five hundred dollars, love and affection.” The deed was acknowledged in due form on the day of its date, and thereafter delivered to the grantee, accepted by her, filed for record and recorded. Immediately following the granting clause, and description of the property, is the following paragraph:

“Edna P. Matthew Hughett is to pay to the grantor, Rodney H. Matthew, Five Hundred ($500) Dollars per year, beginning March 1, 1912, during his natural life, Edna P. Matthew Hughett is to pay Halla Matthew Jones Two Hundred ($200) Dollars per year during her natural life and Edna P. Matthew Hughett is to pay O. R. Matthew Two Hundred ($200) Dollars per year during his natural life, the payments to Halla Matthew Jones and O. R. Matthew to begin at the death of the grantor, Rodney H. Matthew. At the death of Edna P. Matthew Hughett, the above described land is to revert to her heirs.”

At the time of the conveyance the land was worth approximately $25,000. It was the home of the grantor and had been the home of his father before him. The grantee went into possession under the deed, and remained continuously in possession until the death of the grantor, and was in possession at the time of the commencement of this suit. Rodney H. Matthew died March 12,1922, leaving him surviving the said grantee, appellant, and the other daughter and son, the appellees.

On March 28, 1924, the grantee and her husband executed and delivered a trust deed, conveying all of said land to the defendant Henry McDonald as trustee, to secure the payment of a principal note in the sum of $5,700 payable one year after date, with 6 per cent interest. On the date due, the time of payment was by agreement extended for a year and two interest notes evidencing the semiannual interest to become due were executed and delivered to the trustee.

On July 22, 1925, appellants executed and delivered to the defendant, the Centennial National Bank, a mortgage deed conveying all of said real estate to secure the payment of a note for $1,000 due one year after date with 6 per cent interest.

Under the provisions contained in the deed there was due to appellees on March 12,1923,1924 and 1925, the annual payments therein provided for, which the appellant refused to pay. On September 21, 1925, Halla Matthew Carder (formerly Halla Matthew Jones) and O. R. Matthew filed their respective bills in chancery in the circuit court of Cass county, setting forth the foregoing facts and praying for an accounting, and a decree directing the appellants to pay to the appellees such sum or sums as might be found due, with interest thereon, and, that in default of such payment being made, the said real estate, or so much of it as might be necessary, be sold for the purpose of satisfying said payments, and establishing by decretal order a lien on all of said lands to secure all future payments to become due under the provisions in the said warranty deed, first and prior to all other liens or claims against the grantee, and for general relief.

The appellants and Henry McDonald, trustee, and the Centennial National Bank, filed separate general demurrers to both bills. Afterwards, and before a hearing, the trustee and the bank withdrew their demurrers and filed separate answers to the bills. The causes were then consolidated by agreement of all parties and proceeded as one cause. The general demurrers of the appellants were overruled and the demurring defendants, now appellants, abided their demurrer.

Upon hearing on the merits, the decree now complained of was entered, and the demurrants appealed from that portion of the decree only which finds and decrees that the provisions and recitals in said warranty deed constitutes in law a continuing lien on said real estate and finds the amounts due and to become due the said complainants to be a lien thereon, and orders a sale, thereof, for the payment of the amounts due at the time the decree was entered.

The court found that the following sums were due from Mrs. Hughett: To Halla Matthew Carder, three instalments of $200 each with interest from the respective dates each should have been paid, aggregating $657.77; to O. B. Matthew, a like sum including interest; to Henry McDonald, trustee, principal, interest, attorney’s fees and insurance paid by him under the terms of the trust deed, $6,115.75. The court found also that the note to the Centennial National Bank for $1,000 was not due. It was found and decreed by the court that the recitals and provisions in the deed constitute a first and continuing lien on all of the real estate conveyed to the grantee for security of the annual payment therein specified, and that the aggregate of each be paid respectively to the parties to whom they were owing, within the time there limited, with interest from the date of the decree, until paid, with costs; that in default of payment as decreed, the real estate be sold at public auction for cash by the special master in chancery, subject to the lien thereon of Mrs. Carder and of O. B. Matthew for all future payments falling due them or either of them; that out of the proceeds, he pay the several amounts found due them with costs; that he report his acts, and if the property sell for a greater amount than due, with cost and expenses, he bring the surplus to abide the further order of the court.

While fourteen assignments of error are on the record, only one is presented by the brief of appellants in varying forms, viz:

“The court erred in decreeing that the recitals and provisions in said Warranty Deed constitute a valid, first and continuing lien on all of said real estate for the security of the annual payments on the amount stated therein to be due the complainants.”

If, as matter of law and equitable principles, the language of the deeds does not warrant the interpretation given to it by the chancellor, the decree must be reversed. In the argument counsel for appellants contend that there are no expressions in the deed indicating an intention on the part of the grantor to charge the land with the payment of the amounts “requested to be paid to appellees.” Before entering upon an examination of the legal effect of the language employed, it is well to notice as a fact that no request is contained in the deed. The language is not precatory, but mandatory. Edna P. Matthew Hughett “is to pay” to the grantor during his life $500. She “is to pay” to Halla Matthew Jones, and she “is to pay” to O. R. Matthew, the sums specified, to begin at the death of the grantor. These were annual payments to him during his life, and, beginning at his death, during their lives, as to the others. At her death the land is to “revert to her heirs.” While not necessary to a decision of the case, the word “heirs” is a word of purchase under the rule in Shelley’s case, adding nothing to the legal effect of the granting part of the deed. The statutory form is sufficient for that purpose. Smith-Hurd Statutes, ch. 30, § 9 [Cahill’s St. ch. 30, 119].

The conveyance is effectual as a muniment of title in the grantee by virtue of the express words of the statute. As a mere conveyance, she was not bound to accept it, with or without conditions. If no language were in it other than that the statute declares sufficient to convey the fee and she had accepted it when delivered to her, she would be the owner, protected by the covenants imputed by the statute. They were inserted at large in the old long form of deeds. When the grantor delivered, and the grantee accepted, the deed, with the recital “Edna P. Matthew Hughett is to pay” the sums'stated, she is charged with notice of the language employed and with knowledge of its meaning and legal effect. She will not be permitted to accept the benefit of the conveyance of land worth $25,000 and reject the burden of paying the sums it recited she “is to pay.” (18 C. J. 217, § 128; Warren v. Jacksonville, 15 Ill. 236, 241.)

We may not be permitted to assume a fact not shown by proof, but what the experience of men discloses, may be asserted as more than conjecture, indeed as highly probable, that all the terms were agreed upon before the deed was drafted and delivered. The recitals, whether construed as a mandate constituting a condition agreed to by acceptance, or the record of a previous verbal agreement to pay, is as effectual to bind the grantee to the performance of the duty imposed, payment of the sums stated, as if she had signed it.

In Sanitary Dist. of Chicago v. Chicago Title & Trust Co., 278 Ill. 529, 537, the court says: “The acceptance by the grantee of a deed poll conveying an estate in land and containing covenants or agreements to be performed by the grantee, followed by his entering into possession of the premises, binds the grantee to the performance of the covenants or agreements as effectually as if he had signed the deed. (Dean v. Walker, 107 Ill. 540; Schmidt v. Glade, 126 id. 485; Sanitary District of Chicago v. Martin, 227 id. 260; Druecker v. McLaughlin, 235 id. 367; Midland Railway Co. v. Fisher, 125 Ind. 19; Sexauer v. Wilson, 136 Iowa 357; Burbank v. Pillsbury, 48 N. H. 475; Atlantic Dock Co. v. Leavitt, 50 Barb. 135; 54 N. Y. 35; Atlanta, Knoxville & Northern Railway Co. v. McKinney, 124 Ga. 929; Hickey v. Lake Shore and Michigan Southern Railway Company, 51 Ohio St. 40.) ” The covenants operate as a charge upon the land, constituting her a trustee for payment. We think the conclusion not in conflict with the principle stated in the argument of counsel for appellants, but in perfect harmony with it. They say it is a general proposition of law that a provision, effect, or purpose is not to be read into the instrument as having been implied, unless necessity therefor is found in the terms used, or purpose expressed therein. There is here nothing implied and by operation of law she is clothed with an obligation to discharge it as part of the consideration for the benefit she received. Looking, as we must, at the circumstances of the parties at the time the instrument was executed, it was manifestly the grantor’s intention out of his estate to provide for himself in life and for the two surviving children after his death. She was no more a natural object of the grantor’s bounty than were his other two children who are beneficiaries by the terms of the deed.

The conclusion we have stated as to the "legal effect of the language of the deed is supported by the decided cases. Appellants do not contend that the language employed is meaningless, but that it expresses a condition subsequent and not a covenant. The case of Koch v. Streuter, 232 Ill. 594, is clearly analogous to this. The specific point for decision was as to the legal effect of the clause in a deed as shown by an abstract of title as follows: “Upon condition that grantee assumes and pays all debts, claims and obligations owing by said Boswell Dow, deceased, with necessary costs of administration of estate.” It seems that if words alone would create a condition as distinguished from a covenant to perform an act, those quoted would be sufficient. But upon the elementary principle of interpretation of deeds and wills, that if it is doubtful whether the clause is a condition or a covenant, if will be construed as a covenant, the language of the deed was held to be a covenant.

In Dunne v. Minsor, 312 Ill. 333, while the court held the clause in question to be a condition subsequent, in reviewing the cases relating to conditions and covenants and the terms that will lead courts to one conclusion or another, said (339):

“In determining whether a clause is a condition subsequent or a covenant, the presence or the absence of a re-entry clause giving that right to the grantor or his heirs, or of the forfeiture of the' estate for breach of the condition, has always been considered important. (Koch v. Streuter, supra; Post v. Weil, 115 N. Y. 361.) However, it is universally recognized that the intention of the testator is to govern. The usual rule is, that where a conveyance is made upon condition that the grantee shall do a specified completed act, such as pay a specified sum' of money or pay the debts of the grantor, such clause creates a covenant lather than a condition subsequent. The fact that the conveyance states the purpose for which it is made or defines the use to which it is to be applied is not ordinarily regarded as creating a condition subsequent subjecting the estate to defeasance in case of breach of such condition.” (Citing authorities.)

It was said, also, that if the meaning is doubtful as to whether the clause is a condition or a covenant, it will be construed as a covenant, and for the reason that the law favors the vesting of estates rather than their destruction, and conditions are not, therefore, favored. Williams v. Vanderbilt, 145 Ill. 238; Koch v. Streuter, supra; Board of Education of Normal School District v. Trustees of the First Baptist Church of Normal, 63 Ill. 204.

The case of Gallaher v. Herbert, 117 Ill. 160, arose out of a state of facts very much in all.essential particulars like this. A father executed a warranty deed conveying to his son a tract of land for the express consideration of love and affection, and the payment by the grantee to him, of the sum of $200 per year during his life. A further consideration expressed was that the son waived, released and relinquished, to the grantor, all rights he might have in other property as a son and heir of the grantor. The grantee did not pay the stipulated sums. As in this case, he afterwards, executed a mortgage on the land. There were several judgments against him, the property having been sold under an execution issued on one of the judgments. The grantor filed a bill to cancel the deed, to set aside the mortgage as a cloud on his title, for award of possession, and for general relief. The defense of the mortgagee and judgment creditors was collusion to defraud them, the mortgagee filing a cross-bill to foreclose his mortgage. The circuit court held the mortgage and several judgments fraudulent as to complainant, decreed that the cross-bill be dismissed and that the conveyance by him to his son be set aside. The judgment creditors appealed.

The ¡Supreme Court reversed the decree and remanded the cause with directions to the circuit court to enter a decree in favor of the complainant against the land in controversy for the unpaid instalments, with interest from the time they were severally due, and that the payments thereafter annually due during the life of complainant be a lien on the land conveyed by him; and that in default of payment of such sums, the master in chancery sell the land; and that all interests and claims of appellants in the land were junior and subordinate to the lien of complainant. That direction as to decree is like the decree in this case.

The decree of the circuit court was in accord with the bill, but was not adequate, and did not conform to the demands of equitable relief warranted by the facts. The only express stipulation contained in it on the part of the grantee was that he waived and relinquished an interest in his father’s estate as son and heir of the grantor. Reversing the decree, Mr. Justice Scholfield, inter alia, said:

“In the construction of deeds, courts will always incline to interpret the language as a covenant, rather than as a condition. Board of Education v. Trustees, 63 Ill. 204.

“There is nothing in the form of the language here employed to indicate that it was intended the conveyance was upon a condition subsequent. The words, ‘upon condition,’ do not occur, and there are no other words of equivalent meaning. There is no clause providing that the grantor shall re-enter in any event, and these are the usual indications of an intent to create a condition subsequent. Sheppard’s Touchstone (6th ed.) 118. The rule is, a court of equity will never lend its aid to divest an estate for breach of condition subsequent. 4 Kent’s Com. (8th ed.) 134, *130. But where compensation can be made in money, courts of equity will relieve against such forfeitures, and compel the party to accept a reasonable compensation in money. 2 Story’s Eq. Jur. secs. 13, 15, ei seq.

‘ ‘ The language here is reasonably susceptible of the construction that the parties only intended to secure the payment of the $200 during the lifetime of the grantor, and it is clear that much was intende'd. That was the only pecuniary interest the grantor had in the question of whether the land should be alienated or not during his lifetime. If alienated, the grantee might not be able to pay the $200 per annum; but if it could not be alienated during his lifetime, it was ample security for the payment of the $200. The duty to pay the $200, and the inability to alienate, go together. It accomplishes the same result, does injustice to no one, and is more in harmony with the general rules governing the alienation of real property to hold that the grantor here retained a lien on this land for the payment of the $200 annually, on the first day of March, during his lifetime. The appellants took whatever rights they may have, with notice, by the record of the deed, of all the reservations in favor of the appellee, * * * the wrong of the grantee is in not doing what he obligated himself to do by accepting the deed.”

So much of the language of that great judge is quoted because after his own manner he went to the root of the controversy which was more favorable to the grantor than to the appellants in this case. It is said in the argument of appellant that for 12 years she paid $500 a year to her father. But she had obligated herself to make those payments by accepting the deed. She knew it was her duty to make the payments. She is bound as firmly by the same instrument to make the payments to the appellees now seeking relief. In the case last cited, the grantor was demanding the aid of a court of equity to revest him with the title to the property because the payments were not made as provided. In this the grantee is insisting that the language of the deed constitutes a condition subsequent, and not a covenant, which would be a declaration that the title in her fails because she did not perform it. The circuit court properly refused so to hold. If it had adopted that construction of the conveyance, she and the other heirs would become the beneficiaries of it. She would have a share worth eight or nine thousand dollars, mortgaged well up to its value, in property worth $25,000. Having paid the amounts due during her father’s lifetime, it is not unjust to her to assume she knew the law, and that she recognized her obligation to pay according to her covenant. The land is in her name impressed with a trust. Everyone taking a conveyance from her does so with full knowledge that as long as her brother and sister live her interest is burdened with a trust by virtue of the covenant attaching to the title. She is a trustee and appellees are entitled to have the land, or so much of it as is necessary, sold to satisfy their claims. All persons, through whatsoever conveyance claiming, hold subordinate claims.

"It is contended by appellant that the decree does not conform to the bill. It affords the relief that the facts averred and admitted by demurrer require for complete justice. While appellant seems to find fault with the decree as to relief granted to Henry McDonald, trustee, he is not complaining, his trust deed having been correctly declared subordinate to the claims of Mrs. Carder and O. E. Matthew. It is of no concern to her that the trustee or the mortgagee have no relief as to the mortgages she executed to them. The beneficiaries of her covenant have rights superior to her or her grantee, whether in fee or in mortgage. She must pay all the obligations, they being hers, and as security for payment, the decree marshals them in the order the principles of equity require. The mortgagees or purchasers at a mortgage sale, or by assignment, take subject to the rights of the covenantees, in which they cannot be supplanted.

The decree of the circuit court is right and it is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Werner C. Vollrath, Administrator of the Estate of Homer Vollrath, Deceased, Appellee, v. Central Life Insurance Company of Illinois, Appellant.
    Gen. No. 8,002.
    1. Insurance — construction of policy against insurer. Where there is doubt as to the meaning of terms employed in a policy of insurance, the language, being that of the insurer, must be liberally construed in favor of the insured, so as not to defeat, without plain necessity, his claim to indemnity which, in making the insurance, it was his object to secure.
    2. Insurance — when death accidental within double indemnity clause. Death caused by paralysis of the respiratory organs, resulting from the administration of ether in preparation for an operation to re-° move the tonsils of a patient apparently in suitable condition for such an operation, held death by accidental means within the terms of a double indemnity clause of a policy of life insurance.
    Appeal by defendant from the Cbcuit Court of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    W. H. Hinebaugh and W. F. Gray, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Crow

delivered the opinion of the court.

The suit below was assumpsit upon an insurance policy for $1,000, containing a clause for double insurance benefit in case of accidental death. The clauses of the policy pertinent to a disposition of the question presented for decision are:

“In event this policy becomes a recognized claim as a result of accidental death, the Company will pay double the face of the policy, subject to the conditions and privileges herein contained, and in accordance with the clause, ‘Double Insurance Benefit from Accid.6nta,l DgSiIjIi ^ *

“The Company will pay DOUBLE THE FACE OF THE POLICY, making the total amount payable under the conditions of this policy TWO THOUSAND DOLLARS ($2,000), Provided there is no default in any premium, and if the death of the insured results directly, independently, and exclusively of all other causes, from bodily injuries effected solely through external violent, and accidental causes, and while this policy is on a premium paying basis, and before the insured has attained the age of sixty-five (65) years, and the said insured dies within ninety (90) days from the occurrence of said accident.

“This agreement to pay an increased amount in event of death from accidental bodily injury does not apply to death resulting from self-destruction, whether sane or insane; from violation of law or police duty; from military or naval service in time of war; from insurrection, war or riot; from engaging in submarine or aerial voyage, or engaging in any operation pertaining thereto; from physical or mental infirmity, or from illness or disease of any kind, including ptomaine poisoning. * * *”

To the declaration, defendant filed a plea of tender of $1,000 and costs accrued to that time. The general issue was filed denying the several promises charged in the declaration. Defendant replied, admitting satisfaction to the extent of $1,000 and claiming $1,000 additional by reason of the accidental death of Homer Vollrath. The cause was tried by jury which found for the sum of $1,054.03. Motion for new trial having been denied, judgment was rendered for that amount and defendant appeals.

There is no controversy as to the facts. The statement of facts made by the respective counsel does not materially differ. Homer Vollrath was 24 years old at the time of his death. He was about 6 feet tall, weighed 180 to 185 pounds. He went to the John Warner Hospital in Clinton, Illinois, on the morning of his death for an operation to remove his tonsils. He was prepared for the operation and the examination was made of his physical condition by Dr. C. S. Bogardus who believed at the time that it was safe to administer an anesthetic and who began the administration of the anesthetic in the usual and approved manner, with an open mask by the drop method, after protecting Ms eyes. About two ounces of ether had been administered in this manner when an examination showed he was not completely anesthetized and the administration of ether continued for about two minutes longer, at which time anesthetization seemed to be complete. The mouth gag having been removed, it was again inserted, the tongue depresser again put on his tongue, when the muscles of the throat contracted, his chest became rigid, he stopped breathing and instantly died. The professional opinion of all the physicians was that death was caused by paralysis of the respiratory organs due to the effect of ether. A sensitive throat is mentioned, but only as a remote cause of death.

Deceased submitted voluntarily to the anesthetic and all that was done. The means employed were those usually and customarily adopted by reputable physicians in administering an anesthetic in such cases. There was no violence done to any external portion of the body. The treatment given deceased at and immediately before his death was given by skilful and competent physicians and the ether administered was of a standard quality. Death from the administration of ether, as shown by hospital statistics, occurs once out of 6,000 cases.

At the close of the evidence for the plaintiff and at the close of all the evidence the court overruled the defendant’s motion to instruct the jury to find for the defendant. Death of the insured was not expected by any of the physicians. There was nothing to admonish them of the event, or of any danger attending the use of an anesthetic.

Appellant contends that there is no proof that the death of the deceased resulted directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental causes; that the cause of death was the administering of ether at the solicitation of the deceased himself and intentionally administered by the attending physician ; that there was no mishap or unexpected thing done to the deceased of any kind or character; but that the death of the deceased was solely the result of deceased’s own physical condition at the time he entered the operating room.

From the undisputed facts upon which any judgment in this case must rest, only a question of law is presented. The first clause of the policy provides for indemnity for death in any event in the sum of $1,000. That amount was tendered and accepted. The trial proceeded as to the right of recovery under the double indemnity clause. The terms of the policy are before us. The fact of death of the insured, the manner by which it was produced, and all the circumstances attending it are in the record. The difference between counsel for appellant and for appellee, as to whether death was accidental as matter of law, is that between the application of ones line of cases to which the courts of this State are firmly committed and the other line to which they have steadfastly refused to yield. Appellant invokes the latter, and appellee the former, cases.

In the consideration of these cases and the principles deducible from them, it is eminently proper, in view of the emphatic divergence of views of the courts, to apply the well-known rule of construction applicable to accident insurance policies, that where there is a doubt or uncertainty as to the meaning of the terms employed, the language, being that of the insurer, must be liberally construed in favor of the insured, so as not to defeat without plain necessity his claim to indemnity, which, in making the insurance, it was his object to secure. Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, citing Healey v. Mutual Acc. Ass'n of the Northwest, 133 Ill. 556; see also Higgins v. Midland Casualty Co., 281 Ill. 431; Christ v. Pacific Mut, Life Ins. Co., 231 Ill. App. 439. This rule applies with peculiar force against appellant’s contention. It not only wrote the language but when written it knew the trend of decision of this State on the probable points of controversy that might grow out of it. It might be unwilling to yield to the doctrine of the decisions, but it could provide a contract with terms that would avoid or avert it.

Appellant’s contention in the brief is: “The direct, though unusual, result of a surgical operation, is not accidental means.” This is a literal transcript of the first proposition in the brief of counsel for appellant in Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 39 A. L. R. 56, death from surgical operation, relied on here. It is followed by citation of many decided cases, none of which are from the courts, of this State. Counsel for appellee in their brief in that case said: “The insured died by accidental means, within the meaning of the policy.” This proposition is followed by citation of a far larger number of cases, including most of those in this State supporting the contention of appellee here. The divergence of doctrine from that followed in this State is found in the syllabus of the case:

“If the means which cause an injury are voluntarily employed in the usual and expected way, the resulting injury is not produced by accidental means within the meaning of an accident insurance policy, even though it was entirely unusual, unexpected, and unforeseen.”

The view of the courts of this State may be stated as in United States Mut. Accident Ass'n v. Barry, 131 U. S. 100, 33 L. Ed. 60: “If, in the act which preceded the injury, something unforeseen, unexpected, or unusual occurred which produced the injury, then the injury resulted through accidental means.”

Without incumbering this opinion with the citation of cases in which the Barry case has been approved, we refer to Christ v. Pacific Mut. Life Ins. Co., 312 Ill. 525, affirming the judgment of this court reported in 231 Ill. App. 439, and the cases cited.

If the contention of appellant prevails, we must decline to follow our courts. We have no inclination to do that if we had the authority to do so. We can not attribute to our Supreme Court a misconception of the Barry case, Paul v. Travelers’ Ins. Co. 112 N. Y. 472, and others upon which it relies. It is interesting to notice that the Missouri court reached the conclusion here relied on by overruling all decided cases of the courts of appeal of the State and by explaining or overruling its own decisions standing as an obstacle to its conclusion. In the course of it the following statement of the rule by the Court of Appeals is quoted and swept away:

“In the foregoing cases (those not in harmony with ours) it seems to us a too strict and illiberal definition of the term (accident) was adhered to. At any rate they are not reconcilable with the general trend of the best-considered American cases, which hold that accidental means are those which produce effects which are not the natural and probable consequences of the act. ‘An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. ’ 4 Cooley, Briefs on the Law of Insurance, pp. 3156, 3157. Joyce says an accident ‘may be an unusual event attending the performance of a usual and necessary act, or unusual effect of a known cause.’ Joyce on Insurance, § 2863.”

“From the foregoing (the Supreme Court continues ) it is clear the court intended to hold and did hold that an injury or death, which is the unexpected result of an intentional act, is injury or death by accidental means, regardless of proof of mischance or mishap in the performance of the act which produced the result.”

That doctrine repudiated in the Caldwell case is stated in 1 C. J. 427, § 73. Decided cases by the Supreme Court of the United States and by the courts .of nearly every State of the Union are cited in support of it. It is illustrated by reference to specific application in decided cases. Among these is the administration of chloroform by physicians in preparation, for a surgical operation in Beile v. Travelers’ Protective Ass'n of America, 155 Mo. App. 629.

The principle of liability urged by appellant being at variance with that of our courts so often announced, we must decline to follow it. But appellant insists that the evidence shows that death under the circumstances did not result directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental causes. That the cause was accidental, external and violent is so far settled as not to admit of discussion appears from the Christ case, supra, and cases there cited. The question now recurs, Did death result directly, independently and exclusively of all other causes than that of ether administered as an anesthetic?

The evidence shows that the vapor of ether is an irritant. It is usually employed in operations of the character now under inquiry. There was nothing wrong with-its quality and it is not contended that the quantity was excessive. The surgeons attending the deceased were of the highest professional character and all had many years of experience in the use of anesthetics, including ether. Not a word is found in the record suggesting incompetency. Nothing unfavorable is shown in the environment, nor the course of preparation of the patient for the operation. He had consulted his physician as to the operation and appeared at the hospital at the time appointed for it. Every preparation for it was that usually employed. The administration of it began in the usual way and in a few minutes a “bluish color” was manifested in his face, his chest became rigid, and he died instantly. No account is given or ventured as to any possible external cause of death other than the inhalation of ether.

Under these uncontroverted facts attending death, appellant contends that the insured had a sensitive throat and tonsilitis and that death must be attributed to one or both of these conditions, under the terms of the policy. It argues that having a sensitive throat, though in vigorous health, and having voluntarily submitted to .the operation, and paralysis of the respiratory centers or system having resulted, that was the cause and there can be no recovery. This contention is based on a misapprehension of the meaning of the terms of the policy. That ether was a cause of death is not denied. If there were other contributions to death, they were of a different character. If it had not been administered, it cannot be contended he would then have died. Having been administered, and death immediately following, it must have been the cause of death. The sensitive' thr'oat may have been an occasion or condition contributing to the fatal result: But under'the rules applicable, the first efficient cause, without which other circumstances, occasions or conditions would not account for the disaster, must be attributed to that which set in motion the others or rendered them active, however numerous.

The principle is applied to a policy upon the same contentions now made, in Bohaker v. Travelers' Ins. Co., 215 Mass. 32. The circumstances under which insured lost his life were these: He was delirious by reason of severe typhoid fever, in a room with a single window covered by a screen, its sill being 28 inches above the floor. Along the outside of the building, slightly below the window, was a balcony, 5 feet wide, with a protecting railing, about 30 feet above the rough and stony ground. He was left alone momentarily on an August evening by his attendant, who, on returning, found the room vacant and the screen torn from the window. The insured was immediately found on the ground unconscious, "with severe injuries, which, according to the physicians, would have caused his death, even if he had not been suffering from typhoid fever. The policy insured “against bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means (suicide whether sane or insane is not covered).” Upon the foregoing facts stated in the opinion, the cause was tried by the court who found for the plaintiff after refusing to rule as requested by defendant (1) that the plaintiff was not entitled to recover as matter of law; (2) that the death of insured was not effected, directly and independently of all other causes, through external, violent and accidental means; (3) that the death of insured was the result of suicide, sane or insane, and not covered by the policy.

Eugg, C. J., said:

“(1) The defendant’s first request was denied rightly. ‘Accidental means,’ is used in the contract of insurance in its common significance of happening unexpectedly, without intention or design. (Citing the Barry case, 131 U. S. 100.) The cause of injuries was not wholly conjectural as matter of law. It is plain that the immediate cause was the fall. This manifested itself in evidence which was violent and external. There was basis for the inference that it was accidental, as we have defined that word. It may have been that the deceased, in the heat of his fever and the warm season, in an effort to reach fresh air went to the balcony just outside his window, and there without premeditation or purpose or delirium, but only through weakness, lost his balance and went over the low railing and received mortal harm. Cases where it has been necessary for a plaintiff to show negligence of some person as the cause, and where it has been said the cause was conjectural, are clearly distinguishable. Accident is a far more comprehen-" sive term than negligence. Noyes v. Commercial Travelers’ Eastern Accidental Ass'n, 190 Mass. 171, 76 N. E. 665; Wicks v. Dowell [1905] 2 K. B. 225.

“(2) It would have been error to rule as matter of law that the insured’s death was not effected ‘directly and independently of all other causes’ through accidental means. The point of difficulty in this connection is whether the disease did not contribute to the injuries, or at least was it not a cause co-operating with the fall in inducing the result. But the disease may have been simply a condition, and not a moving cause of the fatal injuries. A sick man may be the subject of an accident, which but for his sickness would not have befallen him. * * * In Manufacturers’ Indemnity Co. v. Dorgan, 58 Fed. 945, at page 954, 7 C. C. A. 581, at page 590, 22 L. R. A. 620, it was said by Taft, J. ‘If the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning in such case would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The disease would be but the condition; the drowning would be the moving, sole, and proximate cause.’ To the same effect in substance are Winspear v. Accident Insurance Co., 6 Q. B. D. 42; Lawrence v. Insurance Co., 7 id. 216; Ludwig v. Preferred Accident Insurance Co., 113 Minn. 510, 130 N. W. 5; Preferred Accident Insurance Co. v. Muir, 126 Fed. 926, 61 C. C. A. 456. The language of this contract, to the effect that the ‘accidental means’ must have operated ‘independently of all other causes’ to produce the death, does not change the general rule of law, that the proximate and not the remote cause is the one to which the law looks. Many instances are found where two equally dominant causes' co-operate or concur in producing a result. The very numerous cases arising out of joint or simultaneous torts are illustrations. Two or more causes, each proximate in character and only one of which is accidental, may co-operate in producing an injury. In such cases the limiting language of the policy would apply.

“(3) The present policy does not stipulate that there shall be no recovery, if any other circumstance than the accident, directly or indirectly, wholly or in part, proximately or remotely, contribute to the injury, as do some insurance contracts which have been before the courts. The policy in the case' at bar does not go so far as to require the court to search beyond the active, efficient, procuring cause to a cause of a cause. When one single predominant agency is disclosed, directly producing as a natural and probable result the injury, which is accidental, and which operates independently of other like causes, then the effectual means required by the policy have been found. This contract does- not require a further and nicer analysis to ascertain whether in the chain of causation another source less demonstrative and more attenuated in its effect or more ulterior in its origin may be found which may more indirectly have a causal connection with injury.”

It is not satisfactory to say that paralysis was the cause of death for that was the result produced by ether under circumstances rendering the result unexpected. It is not a sufficient account to say a sensitive throat was the cause, for it was only an occasion, upon or through which an adequate agent operated, though the result was not and could not be anticipated. The sensitive throat was a condition unknown to the competent physicians attending the operation. Whether if they had known of that pathological condition they would have been apprised of the lurking danger, does not appear and is immaterial. Their testimony with regard to it is not that they are positive but offer it as a hypothesis by way of accounting after the fact for the unexpected result of the proper and usual administration of ether. But whatever view is adopted, the generally harmless agent unexpectedly resulted in death by reason of an unknown and perhaps unusual occasion. The basis for expecting a successful use of the anesthetic is that only one in 6,000 cases result fatally. But if ether operating upon a sensitive or vigorous throat caused death, we do not understand that originating externally it was not an external cause of death under the many decisions of our courts and the courts of other States. If the system of the insured had been depleted by illness, and ether administered by physicians of the professional skill and knowledge possessed by those operating on him, and death had followed, as matter of scientific inference as well as of law, the unexpected death must be attributed to ether as the external and efficient cause. Proximity in time of assigned cause and alleged effect is not necessarily the test of causation. The assigned cause may be only an occasion or casual event. But if the assigned cause be eliminated and the effect would not follow, the necessary inference is that the assigned cause is the actual and proximate cause. Having found that, all else is immaterial. Inquiry is arrested.

The doctrine of proximate and remote causation is well illustrated in Ætna Ins. Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395, as applied to loss under a fire insurance policy. A city hall was set on fire to destroy military stores therein to prevent their falling into the hands of the enemy then entering the city. The fire spread to several buildings finally reaching and destroying the insured property of plaintiff. A proviso in the policy excepted from liability loss or damage by fire happening or taking place by means of invasion, insurrection, riot, or civil commotion, or of military or usurped power. The opinion was delivered by Mr. Justice Strong. Applying the reasoning of writers and of decided cases to the facts he said: ‘ The conclusion is inevitable, that the fire which caused the destruction of plaintiffs’ property happened or took place, not merely in consequence of but by means of the rebel invasion and military or usurped power. The fire occurred while the attack was in progress, and when it was about being successful. The attack, as a cause, never ceased to operate until the loss was complete. It was the causa causans which set in operation every agency that contributed to the destruction. * * *

‘ ‘ The proximate cause, as we have seen, is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. * * * It was one of a continuous chain of events brought into being by the usurped military power — events so linked together as to form one continuous whole.”

In Waters v. Merchants’ Louisville Ins. Co., 11 Peters (U. S.) 213, 9 L. Ed. 691, the question presented in a marine insurance policy was whether a fire or an explosion of gunpowder causing the destruction of the vessel and cargo was the proximate cause of loss, the explosion being last in the succession of events. It was said:

“Some suggestion was made at the bar whether the explosion, as stated in the- pleas, was a loss by fire, or by explosion merely. We are of opinion that as the explosion was caused by fire, the latter was the proximate cause of the loss.”

Applying the principles so aptly stated in the Boha-ker case, supra, this is not an action for a tort. The cause of action grows, out of contract. In tort actions, especially in actions based on negligence, the object of inquiry is to connect the circumstance which is the cause of action with a responsible human will. In such cases foreseeableness is the test. What might a reasonably prudent person under all known circumstances have foreseen? There prescience is the test. But in eases arising out of contract providing indemnity under its terms, the parties are bound by their stipulation and not by what they might have stipulated or foreseen. Integral parts of the stipulation are statutes and judicial decisions determining their obligation. There was here one predominant cause of death. No other is suggested that will directly account for it. This fact is and must be always determined after the result. Whatever account may be given, it is clear and indisputable that ether employed was that predominant agent or cause. Its almost universally beneficent effect was deflected by physical conditions then unknown producing the fatal effect undesigned and unexpected by all. Death was therefore caused within the terms of the policy.

Though errors may have intervened at the trial, no other result would have been within the law under the undisputed facts. The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Southern Surety Company, Appellant, v. The Peoples State Bank of Astoria, Appellee.
    Gen. No. 7,945.
    1. Sales — what constitutes a violation of the Bulk Sales Law. Where contractors for construction of a waterworks system, in consideration of the execution of a bond conditioned upon the completion of such system, conveyed to the surety all their equipment used upon such construction, and their interest in the contract therefor, as collateral security for any claim of the surety against such contractors, and gave the surety power of attorney to take possession of its property so conveyed if they defaulted in the construction contract, such conveyance was in violation of the Bulk Sales Law, Cahill’s St. eh. 121a, 1[ 1, and fraudulent as against other creditors.
    2. Chattel mortgages — what necessary to valid lien against third persons. In order that a conveyance of personal property having the effect of a lien upon such property shall be legally effective as a chattel mortgage as against third parties, it is necessary that the requirements of Cahill’s St. ch. 95, If 1, be fully complied with. Merely recording the conveyance is insufficient.
    Appeal by plaintiff from the County Court of Fulton county; the Hon. J. D. Bbeckenbidge, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Rehearing denied February 11, 1927.
    Gillespie & Gillespie, for appellant; Hugh J. Dobbs and Louis F. Gillespie, of counsel.
    Glenn Ratcliff and Robert F. White, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted by the Southern Surety Company from a judgment of the county court of Fulton county in favor of the appellee, The Peoples State Bank of Astoria, concerning the rights of property in certain goods and chattels, originally belonging to Nixon & Keeley, and which were levied upon by virtue of an execution issued upon a judgment for $1,037.83, recovered by the appellee against Nixon & Keeley. The appellant claimed ownership of the goods and chattels levied upon, by virtue of a certain agreement made between it and Nixon & Keeley, in connection with its undertaking as surety for Nixon & Keeley, in their contract with the village of Astoria to construct a waterworks system for the village. This agreement was in writing, and was recorded in the recorder’s office of Fulton county, at the time entered into by the parties, namely, September 12, 1924, This agreement, in so far as it pertains to the matters in controversy, is as follows:

“In consideration of the execution of said bond by the Southern Surety Company, hereinafter called the Company, we the undersigned, hereby covenant with the Company, its successors and assigns: * * *

“FOURTH: And, for the better protection of said Company, and as collateral security hereto and for all claims of said surety against the undersigned, we, the undersigned, do, by these presents, as of the date hereof assign, transfer and convey to the said Company, all the right, title and interest of the undersigned in and to all the tools, plant, equipment, and materials of every nature and description that we may now or hereafter have upon said work, or in, on or about the site thereof, including as well materials purchased for or chargeable to said contract which may be in process of construction, in storage elsewhere, or in transportation to said site. And also, we, the undersigned do hereby convey and assign unto the said Company any and all payments, funds, moneys or property due or to become due to the undersigned as provided in said contract, and also all of our rights in and to all subcontracts which may have been or may hereafter be entered into, and the materials embraced therein. The condition of this conveyance being that in the event the undersigned fail or are unable to complete said work in accordance with the terms of the contract or contracts covered by such bond or bonds, or in event of any default on the part of the undersigned under any of said contracts, we, the undersigned, do hereby nominate and appoint the President or Vice-President of the Company our true and lawful attorney with full right and authority to sign the name of the undersigned to any voucher, check, release, bill of sale, satisfaction or paper necessary or desired to carry into effect the purpose of this assignment, hereby ratifying and confirming all that our said attorney may lawfully do in the premises, and do further authorize and empower said Company, its authorized agents or attorneys, to enter upon and take possession of said tools, plant, equipment, materials and subcontracts and enforce, use and employ such possession.”

Nixon & Keeley defaulted in the performance of their contract with the village of Astoria about September 25,1924, and thereafter,- about October 2,1924, the appellant, under the agreement, took possession of the equipment and material of Nixon & Keeley, which are the goods and chattels involved in this suit, and the same were placed in charge of a custodian who marked each of the articles or property of sufficient size “Property of the Southern Surety Company of Des Moines, Iowa,” and thereafter controlled them, until the levy of the execution by the sheriff of Fulton county referred to.

The controlling question presented in this case is, whether or not the agreement between the appellant and Nixon & Keeley for the transfer to the appellant of the goods and chattels involved is in conflict with the provisions of the act commonly called the “Bullí Sales Law,” which was enacted “to regulate the sale or transfer of goods, wares, merchandise, and other chattels in bulk and to provide certain penalties in connection therewith.” Cahill’s St. ch. 121a, H1. The appellant contends that the agreement and transfer of the goods and chattels of Nixon & Keeley, effectuated thereby, is not a violation of the Bulk Sales Act, referred to, but in reality and effect is a chattel mortgage of the goods and chattels involved. We cannot agree with this contention. The statute provides concerning the validity of chattel mortgages: “That no mortgage, trust deed or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed.” Cahill’s St. ch. 95, j[ 1. The evidence clearly discloses the fact that but one of the essentials of a valid chattel mortgage was complied with, namely, the recording of the instrument in writing. To make it legally effective as a chattel mortgage, against the rights and interests of any third person, it was necessary that all the other statutory requirements should be fulfilled. Lyons v. People’s Bank of Lexington, 317 Ill. 44; Kimball Co. v. Polakow, 268 Ill. 344; Gregg v. Sanford, 24 Ill. 17; Forest v. Tinkham, 29 Ill. 141; McDowell v. Stewart, 83 Ill. 538; Oakford & Fahnestock v. Hill, 135 Ill. App. 511; Frank v. Miner, 50 Ill. 444; Porter v. Dement, 35 Ill. 478; Long v. Cockern, 128 Ill. 29. On the other hand, the transfer of the property involved, made by virtue of the agreement referred to, constitutes a transfer in bulk of the whole of the goods and chattels of Nixon & Keeley’s business, which the Bulk Sales Law declares shall be deemed fraudulent and void as against other creditors. If the transfer or assignment of the goods and chattels in question to the appellant was illegal, the fact that the appellant was in possession of the goods and chattels under the transfer at the time of the levy of the execution would not change the illegal character of the transfer; in fact the transfer of the goods and chattels was not complete until the appellant obtained possession of the same. We are of opinion therefor that the appellee as a judgment creditor of Nixon & Neeley had the legal right to cause the levy in question to be made, and that the court properly found the right of property to be in the appellee. The judgment is therefore affirmed.

Judgment affirmed.


text:
    Loraine E. Kretsinger et al., Appellees, v. Missouri State Life Insurance Company, Appellant.
    Gen. No. 7,989.
    1. Insurance — when policy in force though premium note not paid. A life insurance policy, which hy its terms would become paid up for a term of two years after nonpayment of its third annual premium, was in force when the insured died eight months after such premium became due notwithstanding such premium was paid by giving a premium lien note for all except a small part thereof and such note was not paid at maturity, where the insurer did not notify the insured, on the nonpayment of the note, of its election to cancel the policy.
    2. Insurance — when not forfeited by nonpayment of loan. Evidence in an action upon a policy of life insurance held not to show that the failure of the insured to repay a loan made by the insurer upon the policy operated as a -forfeiture of the policy so as to bar recovery thereon upon the death of the insured.
    Appeal by defendant from the Circuit Court of .Christian county; the Hon. F. E. Dove, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Morton Jourdan, F. L. English and Walter M. Provine, for appellant.
    Leslie J. Taylor and Guy L. Sm:ith, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

Irl 0. Kretsinger, deceased, in his lifetime on March 11, 1919, took out a life insurance policy in the Missouri State Life Insurance Company, in the sum of $3,000, of which the appellees, his children Loraine E. Kretsinger, Bernadine E. Kretsinger and Gwendolyn L. Kretsinger became the beneficiaries. He died on November 12, 1922. The company refused to pay the policy on the ground that the right to recover had ceased because of the nonpayment of the last two annual premiums, accruing thereon, which resulted in bringing this suit in the circuit court of Christian county by the appellees, by T. J. Redfern, their guardian. The appellant company filed the general issue to the declaration, and afterwards gave notice of special defenses which it relied on, namely:

“That the said Irl C. Kretsinger, the insured, mentioned in the declaration, during his lifetime failed tó keep, conform and comply with all the terms, provisions and conditions of said policy of insurance upon his part to be kept and performed by the terms thereof; that such default occurred in the failure of said Irl C. Kretsinger to pay the third annual premium due on said policy of life insurance in the amount of $54.90, on or before the 11th day of March, 1922, when the same became due under the terms of said policy, and the said Irl C. Kretsinger failed to pay the said third annual premium within the time limited to a special extension agreement therefor. And the said Irl C. Kretsinger failed to repay to defendant when due a loan made on said policy by the defendant to the said Irl C. Kretsinger in the amount of $48.96, with interest, as provided in the terms of said policy and said loan agreement.”

It is apparent that the defenses relied upon by the appellant company to bar the appellees’ right of recovery is based on two grounds, First, that he did not pay the third annual premium of $54.90 when the same became due, namely, on the 11th day of March, 1922, nor within the time limited by an alleged special agreement therefor; and secondly, that he failed to repay the appellant company a loan made on the policy in the amount of $48.96 when due, as provided in the terms of the policy and the loan agreement.

A trial by jury of the issues involved resulted in a verdict and judgment for $3,450, the amount of the policy and interest. This appeal is prosecuted from the judgment.

It appears from, the record that, while the issues in the case had reference to an alleged failure to pay the third annual premium, much of the evidence introduced and admitted pertained to another controverted question raised on the trial, namely, whether or not the fourth annual premium was paid. The fourth payment under the policy is not directly involved in the issues, and it will not be necessary therefore to consider or determine for the purposes of this opinion whether or not the fourth annual premium was paid.

The evidence clearly shows that the third premium on the policy, which became due March 11, 1921, was paid, and in its brief the appellant company concedes that this premium “was paid by giving a premium lien note (defendant’s Exhibit J) in the amount of forty-eight and 96/100 dollars ($48.96), due July 11, 1921, and in addition there was a cash payment made of five and 94/100 dollars ($5.94) to bring the total of fifty-four and 90/100 dollars ($54.90), the amount of the premiums for the year ending March 11,1922.” Under the heading, “This Policy is Non-Forfeitable from Date of Issue,” the policy contains the following provisions: “If any premium is not actually paid when due this policy shall cease and determine, except as hereinafter provided. After completion of premium payments for the first two policy years, if any subsequent premium is not paid on the date when due, and remains unpaid during the period of grace, the insured shall, during said period, have the following options: (1) The surrender of the policy for its cash value; (2) The surrender of the policy for a paid-up life policy; (3) If the insured shall not surrender the policy, the insurance will automatically be continued under Option 3.” Option 3 is as follows: “3. To let the insurance for the face amount hereof, continue as term insurance, reckoned from the date due of the unpaid premium.” And under its “Table of Non-Forfeitable Values,” the policy provides that the term of con-tinned insurance, at the completion of the third policy year, shall be for a period of two years. It is clear from this situation that the “Option 3,” in the policy after the payment of the third annual premium, must be considered as having been automatically in force for a period of two years after the due date of the third premium, namely March 11,1922. The appellant company contends, however, that the premium note given by the deceased, for the third annual premium, was not paid, and that the nonpayment of this note worked a forfeiture of the policy. Concerning this contention, it may be pointed out that the note in question recites on its face: “This Premium Lien Note is given by the undersigned and accepted by said Company in lieu of cash for said premium, and is a lien against said policy and an indebtedness thereon until paid, and is subject to the conditions, stipulations and agreements printed on the back thereof, which are hereby referred to, incorporated in and made a part of this note as fully as if recited over the signatures hereto affixed. ’ ’ One of the stipulations on the back of the note referred to is: “4. If the insured shall not make application for the surrender of the policy at the Home Office of the company within the time allowed and in the manner provided by the terms of said policy, the policy will be continued in accordance with the automatic non-forfeiture provisions, and settlement of this note, unpaid interest, and other indebtedness shall be made in the manner above set forth, unless otherwise provided in said policy.

. “5. If this note and unpaid interest is not discharged by the payment thereof in cash or by the surrender of said policy as provided herein, or as provided by the terms of said policy, then whenever the amount of this note and any other indebtedness to the company and any unpaid interest on this note or indebtedness shall equal or exceed the loan value of said policy available on the anniversary date, which was the beginning of the last completed policy year, or in case a paid-up policy shall equal or exceed the then reserve on said policy, computed according to the table of mortality, and the interest rate provided in or used in computing the legal reserve on- said policy, such note and indebtedness shall mature and the lien on said policy shall, thirty-one days after notice has been mailed to the last known address of the insured * * * be deemed to be ipso facto foreclosed, and the amount of the reserve on said policy shall be applied to the discharge of the note and any other indebtedness and any unpaid interest due on said note or other indebtedness, and said note and other indebtedness and said policy shall be automatically can-celled.

“Affidavit of any officer of the company, or of any person having to do with the preparation or mailing of any notice provided for herein or by said policy, that such notice was mailed shall be taken and deemed to be conclusive proof as against any and all persons claiming any interest under said policy of the mailing of such notice at the time and in the manner stated in said affidavit.” Assuming that the appellant company had the right under the provisions of the note referred to to cancel the policy for the alleged failure to pay the note when due, it is clear from the record that the appellant company never exercised the right to do so; no notice as provided for to the deceased, as a condition precedent to enforcement of forfeiture or cancellation of the policy, was at any time given. It is contended that the policy was forfeited on account of the alleged nonpayment of a note for part of the fourth annual premium, which was given in connection with an extension agreement made in September, 1922. It will be noted, however, that this extension agreement provides: “That if this note is not paid on or before the day it becomes due it shall thereupon automatically cease to be a claim against the maker, and the said company shall retain said cash as part compensation for the rights and privileges hereby granted, and as the earned premium for the insurance granted from the maturity of said premium to the maturity of this note, and all rights under said policy shall be the same as if said cash had not been paid nor this agreement made.” That is to say (that if the note given for the part payment of the premium referred to was not paid), the rights of the parties under policy would remain the same as if nothing had been paid and the agreement had not been made. While the question of the nonpayment of the fourth annual premium, and its effect on the rights of the appellees to recover under the policy, was not a matter in issue in the case, as heretofore pointed out, it may be said concerning this contention that if the policy automatically was in force as term insurance for a period of two years from March 11, 1921, as provided in the policy, the nonpayment of the note under the terms of the extension agreement left the policy and the rights of the parties in the same condition as if the note had not been given, and the agreement had not been made, namely, the policy remained in force as term insurance. There is no proof in the record that a failure to repay the appellant company a loan amounting to $48.96 when due, operated as a forfeiture of the policy, or barred the right of recovery. The jury therefore under the evidence in the case properly found the issues for the plaintiff for the amount of the policy and interest thereon, and the record does not disclose any reversible error. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    The People of the State of Illinois ex rel. Margaret A. Flynn, Appellee, v. The Board of Trustees of the Firemen's Pension Fund of the City of Chicago, Appellant.
    Gen. No. 31,198.
    1. Municipal corporations — construction of saving provisions of Firemen’s Pension Act of 1917. Under Cahill’s St. eh. 24, If 955, preserving to widows of deceased firemen then receiving or entitled to pensions under any previous firemen’s pension law the right to receive pensions under the act effective July 1, 1917, the widow of a fireman who became such after the effective date of such act was not entitled to a pension under any firemen’s pension law where it was not claimed that she was entitled thereto under the Act of 1917, and her inchoate right under the prior law had not matured when the former law was supplanted by that of 1917.
    2. Mandamus — clear right as prerequisite to writ. Mandamus will not issue where it does not appear that the relator has a clear legal right thereto.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the second division of this court for the first district 'at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed February 1, 1927.
    Rehearing denied February 14, 1927.
    Francis X. Busch, Corporation Counsel, for appellant; W. Arnold Amberg and Boy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Michael F. Girten, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from an order of the circuit court, entered May 19, 1926, overruling respondent’s general demurrer (which it elected to stand by) to relatrix’s amended petition, filed June 3, 1925, and ordering a peremptory writ of mandamus as prayed to issue forthwith, commanding respondent to pay to relatrix “the amount of money due as pension payments from June 18, 1918, to the date of the issuance of said writ, together with interest on all deferred or delayed payments and to place the name of said petitioner upon the books, list, record or roll of pensioners, and pay her at the rate of $45.00 per month or $540.00 per year” during her lifetime and “as long as she remains unmarried. ’ ’

According to the allegations of her amended petition, relatrix claims to be entitled to said pension payments as the widow of Frank B. Flynn, who died on June 19,1918, and who, many years before, had served continuously, and for more than ten years, as a member of the Chicago Fire Department, viz, from February 12, 1874, until March 31, 1887, on which last-mentioned date, “by direction of his superiors, he resigned.” It is further alleged that on December 1, 1886, he “was severely injured while in the actual performance of duty and became permanently disabled as a result of such injury.”

This is the second time the cause has been before us. The original petition, filed on March 18,1924, was against Francis X. Busch and others, as trustees and officers of .the Firemen’s Pension Fund. Their general demurrer to the petition was overruled and, they electing to stand by it, the court ordered the writ to issue forthwith, commanding them, as trustees, etc., to pay to petitioner $3,853.33, out of said fund, and “also the sum of $56.66, each and every month, beginning April 9,1924.” The trustees appealed and, on March 3,1923, this Appellate Court reversed the judgment and remanded the cause “with directions to sustain the demurrer and to grant leave to petitioner, if she so desires, to either amend her petition or file an amended petition.” (237 Ill. App. 627, opinion not published, case No. 29,484.) On the former appeal two points .were urged by appellants as grounds for reversing the judgment, viz: (a) that the allegations of the original petition were defective and insufficient as against a general demurrer, and (b) that, in any event, the amounts found due and to become due were too large. In our formér opinion we did not discuss the second point further than to intimate that if petitioner was entitled to any pension, it was not in the amounts as awarded. As to the first point, after calling attention to certain defects, we held that the petition-“was lacking in averments of essential facts,” and that it did not show on its face a clear right to the writ.

On the present appeal it is contended that the amended petition does not show a clear right to the writ, and that the court erred in overruling respondent’s general demurrer thereto and in awarding the writ.

It is also alleged in the amended petition that on August 12, 1875, the city council of Chicago passed an ordinance creating a fire department for the city; that by one of the sections (set forth) it was provided that the “present” fire department should be continued; that when the ordinance was passed there was in existence a “paid fire department,” of which said Frank B. Flynn was a member by due appointment; and that he was continued as, and became, a member in good standing of the department, as created by the ordinance, and remained such until March 31,1887. Reference then is made to the passage by the legislature of an act, approved May 24, 1877, entitled “An Act for the relief of disabled members of the police and fire departments in cities and villages,” which, it is alleged, provided for the creation of a pension fund and of a board of trustees to administer it, etc., and which act was amended in May, 1879. Section 6 of the act, as amended, is set forth in the petition and is as follows (Laws 1879, p. 73):

“When, in the judgment of the board, a sufficient amount shall have accumulated in said fund to justify the application thereof to the use for which the same is hereby created, if any member of the police or fire departments, while in the actual performance of duty * * .*, shall become permanently disabled, so as to render proper his retirement from membership, a sum not exceeding six hundred dollars ($600) per annum, or such less sum as, in the judgment of the board, the fund will justify, shall be paid to such member out of said fund; or if any member, while in the actual discharge of duty shall be killed, or shall die from the immediate effects of an injury received by him while in such discharge of duty, or shall die after ten years service in the police or fire departments, and shall leave a widow, * * * a sum not exceeding six hundred ($600) dollars per annum, or such less sum as, in the judgment of the board, the condition of the fund will justify, shall be paid to such widow so long as she shall remain unmarried * *

It is further alleged that, at the time of Flynn’s resignation on March 31,1887, he had served in the department “for more than 10 years,” and, having become permanently disabled while in the actual performance of duty, he “thereupon became entitled to receive a pension in a sum not exceeding $600 per annum,” but that he “did not at any time apply for nor receive said pension,” although there had accumulated a sufficient amount in the fund justifying the payment thereof; and that prior to his resignation he “complied with all the provisions of the pension act and paid into the pension fund all assessments regularly made upon him by the board of trustees, as required by the act and by the regulations of the board, and complied with all rules and regulations established by the board.”

Section 7 of said Act of 1877, as amended in 1879, is also set forth, as follows:

“Any person who shall have served in either the police or fire departments of said city or village for the full term, of ten (10) years, and shall have paid into the fund * * * all assessments regularly made upon him by the board of trustees as required by this act, and the regulations of the said board of trustees passed in pursuance of this act, and shall have complied with all the . rules and regulations lawfully established by the board of trustees in the same manner, as if such person was an active member in said police or fire department, may continue his membership in this organization, and be entitled to the benefits of this fund after he shall have ceased to be a member in either said police or fire department, by complying with all the provisions of this act, relative to the payment of assessments, etc., the same as prior to his ceasing to be a member of said departments, and the widow or children of such person shall be entitled to all benefits hereby secured to other members of this organization. ’ ’

It is further alleged that Flynn, subsequent to his resignation on March 31, 1887, “complied with all the provisions of the pension act, paid into said pension fund all assessments regularly made upon him by the board of trustees, as required by the act and by the regulations of said board of trustees, and complied with all rules and regulations established by the board, in the same manner as if he was an active member in said fire department.” (For what period of time and in what amounts Flynn paid assessments, etc., are not alleged.)

It is further alleged that in May, 1887 (after Flynn’s resignation) the legislature passed an act, approved May 13, 1887, applicable to cities having a population, in excess of 50,000 inhabitants and having a paid fire department, and entitled in part “An Act to create a board of trustees of the firemen’s pension fund; to provide and distribute such fund for the pensioning of disabled firemen, and the widows and minor children of deceased firemen,” etc. Section 9 only of this act is set forth in the petition as follows (Laws 1887, p. 120):

“The widows and orphans of deceased firemen and retired members of the fire department, who are now entitled to pension or annuity under the provisions of an act entitled £An act for the relief of disabled members of the police and fire departments in cities and villages,’ approved May 24,1877, as amended, shall be entitled to the benefits, pensions and annuities provided for by this act: Provided, such persons shall thereupon cease to receive pensions, relief or benefits under said act of May 24, 1877.”

It is further alleged that this provision of said Act of 1887 “continued the rights” of Flynn, “and of petitioner as his wife, ’ ’ in and to all rights secured by them under the Act of 1877 as amended; that in June, 1917, the legislature passed another Firemen’s Pension Fund Act, in force July 1,1917 (before Flynn’s death), providing for such a fund and creating a board of trustees as a body corporate to administer the fund in cities having a population exceeding 200,000 inhabitants, as Chicago then had; that section 10 of said act (not set out in full in the petition) “provided a pension for widows, while unmarried, in the sum of $45 per month;” and that section 14 of said act is as follows (Cahill’s St. 1923, ch. 24, If 955, p. 699):

“The widows, orphans and dependent parents of deceased firemen and all retired firemen who are receiving or entitled to pensions under any other firemen’s pension law in force in any such city at the time this Act shall become effective, shall be entitled to the benefits and pensions provided for by this Act, and none other, from the time that'this Act shall become effective in such city. ’ ’

Section 10 of said Act of 1917, referred to in the petition, is in part as follows (Cahill’s St. 1923, ch. 24, If 951, p. 698):

“If any fireman shall die from any cause while in the service, * * * or if any fireman shall die from any cause during retirement on account of disability or during retirement after twenty years’ service and while in good standing, as provided in this Act, and shall leave a widow, * * * said board of trustees shall direct the payment from such pension fund of the following sums of money monthly:

“(a) to such widow, while unmarried, forty-five dollars, * * #.”

It is further alleged that Flynn and petitioner were married on June 19,1878; that petitioner was his wife continuously thereafter until his death, which occurred on June 19, .1918; that since his death she has remained unmarried; that upon his death she became “the widow of a fireman who died after ten years’ service” and she “became entitled to a pension under the pension act of 1877, as amended in 1879”; that because upon his resignation in March, 1887, Flynn was entitled to a pension, petitioner, upon his death, “became entitled to a pension under section 14 of said pension act of 1917,” and for the reason that “Flynn’s right to a pension, under the Act of 1877, as amended in 1879, was kept in force and preserved to him by the acts of 1887 and 1917”; that the amount of the pension to which she is entitled is $45 per month, beginning at his death and continuing during her lifetime so long as she remains unmarried; that she has made a written application or demand to and upon said board of trustees, etc., made a body corporate by said Act of 1917; that it place her name upon the pension roll and pay her said monthly pension, but that it refused to do so and still refuses; and that at the time of Flynn’s death in June, 1918, there was, and at all times since there has been, ample money in said pension fund with which to pay to her said pension.

It is further alleged that said board of trustees, etc., never disputed nor denied the truth of the facts, as set forth in petitioner’s application or demand for a pension, namely, that said Flynn served as a member of the fire department for more •than 10 years; that he paid into the fund all assessments regularly made upon him by said board and complied with all of its rules and regulations; that while in the performance of duty as a fireman he was injured on December 1, 1886, and became permanently disabled, and that he died on June 19, 1918, leaving petitioner as his widow, who has never remarried; and that said board denied petitioner’s application for a pension “solely upon the ground that the provisions of said pension act of 1877, as amended in 1879, are not now binding upon said board.”

Counsel for relatrix argues in his brief “that by Flynn’s ten years’ employment in the Chicago Fire Department (thirteen years in fact) back in the days from 1874 to 1887, and his ceasing to be an active fireman and his having been disabled as a result of his employment as such fireman * * * and his having otherwise complied with the statute (the demurrer admits all this), Flynn, under the act of 1877 (as amended), became entitled to a pension; that by the act of 1887 his rights were preserved to him and his wife became qualified to receive a pension after his death; that no amendment or change of the law has had the effect to take away the qualifications of either Flynn or his wife, but, on the contrary, all amendments or changes have preserved to them their rights; and that, accordingly, upon Flynn’s death on June 19,1918, his widow, the relatrix, became entitled to a pension. ’ ’

After reviewing the allegations of the amended petition (in which in some instances conclusions rather than facts are stated) as well as the acts of the legislature mentioned, we are unable to agree with all of counsel’s argument or his conclusion. The question is, under the facts as alleged: Is relatrix, as Flynn’s widow, entitled to a pension? Under section 6 of the Act of 1877 (as amended), had, Flynn died while that act was in force, perhaps relatrix as his widow would have been entitled to a pension because of his ten years’ service in the fire department. And doubtless this inchoate right in her, if any she had, to receive a pension upon his death, was continued and preserved to her under section 9 of the Act of 1887. But Flynn did not die while either of said acts was in force. And this inchoate right in her to a pension upon his death, under either of said acts, was not a vested right, as against a subsequent change in the law. (Pecoy v. City of Chicago, 265 Ill. 78, 80; Beutel v. Foreman, 288 Ill. 106, Ill.) The Act of 1917 became in force on July 1,1917, and we think it apparent from a reading of that act that it was the intention of the legislature to make an entire revision of the subject matter relating to firemen’s pensions. Under section 10 of that act the widow of a deceased fireman is no longer entitled to a pension because of ten years’ service of that fireman in the department, but it is provided that, “if any fireman shall die from any cause while in the service * * *, or if any fireman shall die from any cause during retirement on account of disability or during retirement after twenty years service and while in good standing,” the widow of such fireman becomes entitled to a pension of $45 per month. It is not claimed in the amended petition that Flynn died “while in the service,” or that he died “during retirement after twenty years service”; nor is it sufficiently alleged or claimed that he died “during retirement on account of disability.” The claim of relatrix is that, because Flynn served in the department for ten years, ending March 31, 1887, she, upon his death in June, 1918, became entitled to a pension under the former Pension Act of 1877 (as amended) — the right to which pension being preserved to her by section 14 of the Act of 1917, which provided that “the widows * * * of deceased firemen * * _ * who are receiving or en titled to pensions under any other firemen’s pension law in force in any such city at the time this act shall become effective”; shall be entitled, etc. But, when said Act of 1917 became effective (July 1, 1917), relatrix was not Flynn’s widow and she was not “receiving or entitled to” a pension under any former pension law, and it follows, we think, that she then had no right to a pension under any other firemen’s pension law. It is to the “ widows * * * of deceased firemen” that such rights are preserved. And we do not think that the cases of O’Connor v. Trustees Firemen’s Pension Fund, 155 Ill. App. 460, and Wilke v. City of Chicago, 212 Ill. App. 414, cited by counsel, are in point. They arose before the Act of 1917 was passed and did not involve pensions of widows of firemen. Furthermore, the right to the writ, as prayed and awarded, is at least a doubtful one, and the allegations of the amended petition do not, in our opinion, show that relatrix has a clear legal right to the writ. In such cases the writ should not be awarded. (People v. Rose, 225 Ill. 496, 498; People v. Blair, 292 Ill. 139, 144; Quernheim v. Asselmeier, 296 Ill. 494, 499; People v. Dever, 236 Ill. App. 135, 147.) In the Bose case, supra, it is said: “The writ of mandamus * * * only issues where there is a clear legal right to be enforced or a duty which ought to be performed. It is never issued in doubtful cases. * * * The award of this writ, even in cases where the relator has an undoubted legal right, is in the wise judicial discretion of the court.”

Our conclusion is that the circuit court erred in' overruling respondent’s general demurrer to the amended petition and in awarding the writ. Accordingly, the judgment is reversed and the cause is remanded with directions to the circuit court to sustain said demurrer.

Beversed and remanded with directions.

Fitch and Barnes, JJ., concur.


author: Mr. Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Steve Dragowski, Plaintiff in Error.
    Gen. No. 31,169.
    1. Criminal procedure — when defendant waives arrest without warrant. A defendant who submits himself to the jurisdiction of the court, pleads to a charge against him and submits to trial, thereby waives his right to proper process to bring him before the court.
    2. Criminal procedure — waiver of trial by jury not required to be in writing. In view of the invalidity of the statute of 1893 requiring that a waiver of a trial by jury be in writing, a conviction of petit larceny will not be reversed on writ of error upon the ground that the defendant was tried without a jury when he did not in writing waive his right to a jury.
    3. Criminal procedure — when conviction not reversed on ground defendant not represented by counsel. A conviction of petit larceny will not be reversed on writ of error upon the ground that defendant was not represented by counsel where the record states that he was so represented, and the record contained nothing to indicate that he was not.
    4. Courts — presumptive verity of record. The record of the court imports absolute verity, and cannot be contradicted or amended except by other matters of record made by or under the authority of the court.
    5. Criminal procedure — omission of recital in short form judgment of municipal court as basis for amendment of final judgment. Where on conviction of a defendant in municipal court of an offense judgment was entered in the short form authorized by section 62 of the Municipal Court Act, Cahill’s St. eh. 37, 11455, the fact that such judgment contained no recital as to whether defendant was represented by counsel does not warrant correction of the final amplified form of such judgment so as to show that he was not so represented.
    6. Criminal procedure — effect of omission from judgment of recital as to representation of defendant by counsel. It is not necessary to the validity of a judgment of conviction of an offense that the judgment contain a recital that the defendant was represented by counsel.
    Error by defendant to the Municipal Court of Chicago; the Hon. Alear M. Eberhardt, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed February 1, 1927.

      Z. H. Kadow and A. L. Gettys, for plaintiff in error.
    Robert E¡. Crowe, State’s Attorney, Edward E. Wilson and Clarence E. Nelson, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error was tried, convicted and sentenced in the municipal court for the offense of petit larceny.

The alleged errors relied on for reversal are that (1) he was arrested without a warrant; (2) tried without a jury or waiver thereof in writing; and (3) did not have and was not furnished counsel by the court, and (4) refusal of the court to amend the record.

As to the first point, inasmuch as it appears from the transcript of the record that defendant submitted himself to the jurisdiction of the court and pleaded to the charge and went to trial, he waived the right to proper process to bring him before the court.

As to the second point, it was unnecessary that the waiver of the trial by jury should be in writing. The statute of 1893 which so required has been declared unconstitutional in that respect. (Sturges & Burn Mfg. Co. v. Pastel, 301 Ill. 253.)

As to the third contention, the record, which imports verity, states that defendant was represented by counsel, and there is nothing in the record to indicate that he was not.

The fourth alleged error is predicated on the denial of plaintiff in error’s motion to amend the record by striking out the recital therein that defendant was represented by counsel. It was the theory of his counsel that inasmuch as the abbreviated form of the judgment, as provided for by section 62 of the Municipal Court Act [Cahill’s St. ch. 37, [f 455], contains no statement or recital on that subject, the recital in the amplified form does not speak the truth and may be cor-reeled from the fact of its absence in the abbreviated entry. Only the judgment in such amplified form — a form generally adopted in all courts — is set out in the clerk’s transcript. The abbreviated forms- of entries made in the case, which are much in the form of docket entries, are shown in a so-called “half sheet,” introduced as evidence in support of the motion.

While said section provides for entries of orders and judgments in an abbreviated form in the first instance it also contemplates a final entry thereof in an amplified form as the true judgment of the court. That is the form in which it is certified, and hence we must accept its recitals as correct and speaking the truth. It is apparently an expansion of the abbreviated judgment entry, and the only one to be considered. (Nicholson v. Loeff, 253 Ill. 526.) As said in the cited case: “The general rule is that the record of a court imports absolute verity, and cannot be contradicted or amended except by other matter of record made by or under the authority of the court.” There is in this record no other matter of record upon which to base the amendment as asked for. The bill of exceptions does not preserve the trial proceedings, but merely the proceedings on this motion which was made several months after judgment. It is only as evidence to support the motion, and not as a part of the clerk’s transcript, that the “half sheet” showing abbreviated entries in the case appears.

But the right to amendment is not predicated upon any affirmative showing of the record that defendant was not represented by counsel, but merely upon absence of any mention of it in the abbreviated form of judgment. But such omission has no significance. Were the sufficiency of the judgment to be tested by the abbreviated entry or form it would be found to omit many essential requisites. But it in no respect impeaches the complete judgment order. (Nicholson v. Loeff, 253 Ill. 526.)

But regardless of all other questions such a recital is not essential to the validity of a judgment. No statute or law is pointed out which requires it. It is not a jurisdictional fact. To he sure, the statute requires, in accordance with previous practice, that every person charged with crime shall be allowed counsel, and that when he is unable to procure counsel the court will assign him counsel. Error may be assigned for any abuse of this right, but there is no basis in the record for assignment of any such error. For aught that appears to the contrary he had counsel. The question here is whether there is anything on the face of the record to justify the amendment asked for, and nothing is relied on except the omission from the abbreviated form above stated. To hold therefrom that defendant was not in fact represented by counsel, and that the recital to the contrary in the judgment order certified as such to us, does not speak the truth, would be to contradict the record, and disregard the general rule above stated as to its verity.

Affirmed.

Gridley, P. J., and Fitch, J., concur.