text:
    Adelaide M. Thomason, Appellant, v. Chicago Motor Coach Company, Appellee.
    Gen. No. 39,486.

      Opinion filed October 19, 1937.
    Young, Pares & Peterson, of Chicago, for appellant; Thomas J. Young, of Chicago, of counsel.
    Walter N. Murray, of Chicago, for appellee; Chester D. Kern, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued to recover damages for injuries sustained in an accident while she, a passenger, was alighting from one of defendant’s coaches. At the close of plaintiff’s case the trial court, upon motion of defendant, instructed the jury to find it not guilty. Plaintiff appeals from a judgment entered upon the verdict.

The second amended statement of claim alleges, in substance, that on November 22, 1933, plaintiff was 64 years of age, about five feet three and one-half inches in height, and weighed 225 pounds, that on that date she boarded one of defendant’s coaches in the downtown district of Chicago, paid her fare, and proceeded northerly to Wilson avenue, where she transferred ta another bus of the same company, which proceeded northerly on Sheridan road until it reached the corner of Lawrence avenue and Sheridan road, plaintiff’s destination. The statement describes the second coach or bus as a “one man bus,” operated by a single motorman or driver seated in the front part, with no conductor or guard to assist, direct or guide passengers who might be in need of assistance by reason of age or other infirmity to alight therefrom in safety; that the door for passengers to leave and enter was located on the right hand side of the front part of the coach; that the only hand rail on the left hand side of the exit was located at such a distance from the outer edge of the step leading to the ground as to make it practically impossible for passengers to grasp the rail and at the same time descend safely from the step to the ground; that the only hand rail available for that purpose was located on the right hand side of the right exit door, about six or eight inches inward from the outer edge of the door; that there was but one step leading from and between the floor of the coach to the ground, which step- was located at an unusual and dangerous height from the ground, viz., 16 to 18 inches; that all of said equipment made it difficult and dangerous for passengers, especially such as were handicapped by age, overweight, lack of ordinary agility or other infirmity, to safely alight from the coach without assistance or without some kind of platform, curb, or other raised landing to step upon; that the coach was of the same type as had been used by defendant on the streets of Chicago for a long time and defendant well knew its defects and faults; that it was difficult for plaintiff to descend stairs or steps of such height with safety without the aid of a convenient hand rail, platform, curb, or other raised landing to step upon, or without assistance of some kind; that about seven o’clock p. m., after dark, plaintiff arrived at her destination at the northeast corner of Sheridan road and Lawrence avenue, and the driver, or motorman, instead of drawing near enough to the east curb of the street to enable plaintiff to step thereon with safety, brought the coach to a stop in a slanting position with the rear end close to the curb and the front pointing outward, with the step leading from the exit door at such a distance from the curb as to lead plaintiff to believe that she could step to the curb with safety, the outer edge of the step being at a distance of two to two and one-half feet from the curb; that realizing the difficulty she would have, on account of her age, weight, and general lack of ordinary agility, in descending from the high step to the ground without assistance or the aid of a convenient hand rail on the left hand side plaintiff was obliged to grasp the right hand rail with her right hand and was thereby placed in such a position that in order to descend she would necessarily have to step off with her left foot instead of her right foot, and with her back turned toward the front of the coach; that she used such due care and caution as could reasonably have been expected under the circumstances; that she fully believed that the distance from the step to the curb was such that she could step to the curb with greater safety than she could step to the ground, and fearing that if she stepped to the ground she might be in danger of being struck by the rear end of the coach, which was close to the curb, plaintiff attempted to reach the curb with her left foot, but found that the distance was greater than it appeared to be and that she was unable to reach the curb except to barely touch it with her foot, which slipped from the edge of the curb- and came down with great force on the pavement, thereby injuring her left foot and ankle, etc.; that defendant was negligent in failing to have its coach equipped with a convenient hand rail on the left hand side of the exit door, thereby causing passengers, who, because of age or other infirmity, are obliged to depend upon such rail for assistance, to descend therefrom in an awkward and dangerous position; in having its coach equipped with a step of such unusual, inconvenient and dangerous height; in failing to have a guard or conductor at the exit door to assist, direct or guide passengers who because of age or other infirmity might be in need of such assistance in alighting from the coach in safety, or else providing for them some sort of platform or other raised landing to step upon; that the driver, or motorman, in charg’e of the coach negligently and carelessly failed to bring the coach to a stop close to the curb when there was nothing to prevent him from doing so, and negligently brought the coach to a stop with the step at too great a distance from the curb to enable plaintiff to step on or to the curb with safety, and yet so near to the curb as to lead plaintiff to believe she could make such step with safety.

Defendant’s affidavit of defense denies that plaintiff’s injuries were caused by the operation or construction of defendant’s coach, or through any negligence of defendant, but were caused by the carelessness of plaintiff in alighting from the coach without looking where she was alighting, and that she knew of the height of the coach step.

Plaintiff strenuously contends that she made out a clear, prima facie case against defendant, and that the trial court committed serious error in directing a verdict for defendant. The record fails to show the grounds upon which the trial court gave the peremptory instruction. Defendant contends that the court’s action was based upon the theory that plaintiff failed to make out a prima facie case that she was in the exercise of due care and caution at the time of the accident or that defendant was negligent, and that the instruction was warranted under plaintiff’s evidence and the law.

A number of personal injury cases have recently come to this court wherein juries had been directed to find for defendants where it appeared that the plaintiffs had made out a prima facie case, and we, therefore, deem it advisable to restate long settled principles of law that govern the action of a court in passing upon a motion to direct a verdict for the defendant in cases of this character.

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ (Hunter v. Troup, 315 Ill. 293, 296-7.)” (Mahan v. Richardson, 284 Ill. App. 493, 495.)

“The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as a question remains whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact.. (Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 Ill. 587; Austin v. Public Service Co., ante, p. 112.) Before we can say, as a matter of law, that there was no negligence on the part of the defendant or that there was such contributory negligence on the part of the plaintiff as to defeat recovery, we must be able to say that all reasonable minds must agree that the defendant was" not negligent in his acts or that the injury was the result of plaintiff’s own negligence.” (Petro v. Hines, 299 Ill. 236, 240. See, also, Pollard v. Broadway Central Hotel Corp., 353 Ill. 312, 322, 323.)

‘ ‘Whether a plaintiff was guilty of contributory negligence is ordinarily a question of fact for the jury to decide under proper instructions. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. (Thomas v. Buchanan, 357 Ill. 270; Mueller v. Phelps, 252 id. 630; O’Rourke v. Sproul, 241 id. 576.) A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. (Brophy v. Illinois Steel Co., 242 Ill. 55; City of Chicago v. Jarvis, 226 id. 614.) We cannot weigh the evidence to determine, as a matter of fact, whether the plaintiff was guilty of contributory negligence, (Dukeman v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co., 237 Ill. 104,) and we cannot reject testimony as improbable unless it is contrary to some natural law. (Zetsche v. Chicago, Peoria and St. Louis Railway Co., 238 Ill. 240.)” (Ziraldo v. Lynch Co., 365 Ill. 197, 199-200.)

At the time of the accident plaintiff was a school teacher, 64 years of age, five feet three and one-half inches in height, and weighed 225 pounds. On November 22, 1933, about six o’clock p. m., she got on one of the coaches of defendant at Monroe and State streets, paid her fare, and received a transfer slip. Her niece was with her. They were on their way to the Peoples Church, on Lawrence avenue, just east of Sheridan road. The north bound trip of this bus ended at Wilson avenue and at that point plaintiff and her niece transferred to another bus of defendant that went northward on Sheridan road beyond Wilson avenue. Their destination was Lawrence avenue and Sheridan road. The second bus was “an old style one,” commonly known as a “one man bus,” with the place of entrance and exit on the right hand side at the front. There was no guard or conductor on the bus. The motorman was located in the front of the bus in a compartment. “There is a loading zone at the place where the coach stopped and a sign that the coach stops here” for loading and unloading passengers. When the bus stopped it “was not quite up to the loading zone.” “It stopped back between that loading zone and Lawrence avenue,” “in a slanting position; the hind wheel was closer to the curb than the front wheel.” Plaintiff went to the door, looked for the hand rail, and grasped the one at the right because the left one was so far in, “16 to 18 inches from the outer step, ’ ’ and with her back partly turned in the direction the bus would move, stepped down with her left foot on the only step from the floor of the coach to the ground. This step was about 16 or 18 inches above the street.. From the outer edge of the step to the curb was about two feet. The rear of the bus was about 12 to 16 inches from the curb. As she stood on the step, plaintiff saw that the rear end of the bus was closer to the curb than the front end. “There were no obstacles between the coach and the curb; there was nothing in the way.” She looked to see “how was the best way to step, which was the best and safest way to get off. ” “ The curb was about 3 or 4 inches high. On account of the hind wheels of the bus, I didn’t feel safe to step between the edge of that step and the curb. I thought I did not have room to step between the edge of the coach and the curb.” Plaintiff stepped with her left foot from the step of the bus to the curb. “The instep> of my foot landed on the curb, and it scooted down; I couldn’t reach the ground, and it scooted down; and I felt as though the interior of my foot was being torn apart. ’ ’ The injuries and damages sustained by plaintiff need not be considered upon this appeal.

Counsel for plaintiff sought to show by plaintiff why she considered it safer to step to the curb than to the space between the step and the curb, but- objections to questions bearing on that point were sustained by the trial court. Defendant was contending that due care on the part of plaintiff required her to step upon the street, and there is some force in the argument that the offered evidence was competent as tending to show that plaintiff, compelled to act quickly, might reasonably conclude that in case the bus started suddenly its rear end, because of the slanting position in which the bus was standing, might strike a person of her age and weight before she could reach the sidewalk. However, a reasonable inference may be drawn from her evidence as to why she did not step to the street.

A carrier is required to use the highest degree of care and caution consistent with the practical operation of the road, to provide for the safety and security of the passenger while being transported. (Chicago City Ry. Co. v. Pural, 224 Ill. 324, 328.) It is the carrier’s duty to furnish a reasonably safe place for passengers to alight (Griswold v. Chicago Rys. Co., 339 Ill. 94, 98. See also Paris v. East St. Louis Ry. Co., 275 Ill. App. 241, 245); but defendant contends that that general rule has but a qualified application to defendant’s service, and cites, in support of the contention, such cases as Feeney v. Chicago City Ry. Co., 220 Ill. App. 400, 405. The Feeney case involved a street railway company, which necessarily received and discharged passengers upon the surface of the street, and, under the facts, it has no application to the instant one. As .stated in Paris v. East St. Louis Ry. Co., supra, at page 245: “A street car cannot be operated so as to discharge passengers at the curb. A bus can be so operated and ordinarily is so operated.” It is a matter of common knowledge in Chicago that defendant has regular stopping places where it loads and unloads passengers, and that at such places it has an iron upright, located on the sidewalk or parkway about one foot inside the curb. This upright has words upon it indicating that it marks a stopping place for defendant’s buses. It is also a matter of common knowledge that it is the custom of defendant, when taking on and discharging passengers, to drive its bus to the curb at a designated stopping place. By its method of doing business defendant holds out to the public the inducement that it will take on and discharge passengers at the curb. One of the great advantages claimed for bus service is that passengers can get on and off the buses without the danger that is sometimes incident to street car rail service. A motorbus service that would discharge and take on passengers on a highway such as Sheridan road would not survive very long. In the instant case there was no obstacle to prevent the motorman from driving the coach alongside the curb at the usual stopping point, and, under the facts, plaintiff would have been justified in arguing to the jury that had he done so the accident would not have happened. As stated in Paris v. East St. Louis Ry. Co., supra, at page 246: ‘ ‘While no statute requires a motorbus carrier to discharge passengers at the curb, and it is true that cars may be parked along the curb, nevertheless a question of fact may be presented whether proper care for the safety of passengers requires that a particular bus should be driven to the curb when it is reasonably convenient to do so on a particular occasion.”

In the instant case we have the additional facts that defendant had regular stopping places at the curb for taking on and discharging passengers and that at the time of the accident there was no car nor obstacle of any kind to prevent the motorman from driving the bus to the curb. Undoubtedly, the evidence of plaintiff, with all its reasonable inferences most favorable to her, fairly tends to establish negligence on the part of the motorman, and the question of defendant’s negligence should have been submitted to the jury.

But defendant contends that plaintiff was guilty of contributory negligence, and in support of that contention argues: “If plaintiff’s premise is that the driver was guilty of negligence in not bringing the coach so near the curb that plaintiff could safely step to the curb, then we say that the plaintiff was guilty of contributory negligence in attempting to make the effort. She admits she considered whether she should step on the pavement or step on the curb. Her poor judgment, if such it was, is chargeable to her and not to the defendant.” We find no merit in this contention, and, in our judgment, it is idle to argue that all reasonable minds must agree that the injury was the result of plaintiff’s own negligence. Defendant’s point in support of the instant contention is that plaintiff should have stepped to the ground instead of attempting to step to the curb. The situation that confronted plaintiff was not of her choosing, and it was suddenly forced upon her by the action of the motorman. It was after dark at the time. .She was obliged to:make a quick decision and she adopted what appeared to her to be the safer one. As stated in Chicago, R. I. & Pac. Ry. v. Brown, 229 U. S. 317, 321: “But some judgment was necessary, and whether he should have selected one of the ways which counsel point out admits of debate. It is one thing to judge of a situation in cold abstraction; another thing to form a judgment on the spot.”

If plaintiff, under the situation that confronted her, exhibited the care and caution which an ordinarily prudent person would have exhibited under the same or similar circumstances, she would not be negligent merely because, in stepping to the curb instead of to the ground, she did not take the safer course. Moreover, the evidence tends to show that the reason that plaintiff did not step to the ground was because she feared that if the coach were started quickly she might be struck by its rear end, which was closer to the curb than the front end, before she reached the sidewalk. It was for the jury to say whether plaintiff, a woman of 64 years of age and very heavy for a person of her height, exercised due care. We hold that the trial court erred in directing a verdict for defendant. To hold otherwise would be to deprive plaintiff of the right to have her prima facie case tried by a jury.

The judgment of the municipal court of Chicago is reversed, and the cause is remanded for a new-trial.

Judgment reversed and cause remanded for a new trial.

Friend, P. J., and John J. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Agnes Katherine Rapers, Appellee, v. George A. Holmes and Marie Holmes, Appellants.
    Gen. No. 39,485.

      Opinion filed October 19, 1937.
    Cooke, Sullivan & Ricks, of Chicago, for appellants ; D. T. Erickson and Carl O. Holmes, both of Chicago, of counsel.
    Joseph Krooth and Alfred M. Loeser, both of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $300 entered in favor of plaintiff, Agnes Katherine Rapers, and against defendants, George A. and Marie Holmes, upon the verdict of a jury in an action brought by plaintiff for personal injuries alleged to have been caused by the negligence of defendants in the operation of an automobile which collided with the car plaintiff was driving.

Plaintiff’s second amended statement of claim alleged substantially that September 27,1934, she owned an automobile which she was driving in a westerly direction on a highway known as route 6 in Marshall county, Indiana, about one-half a mile east of a highway known as route 31; that at said time and place defendant Marie Holmes was driving another automobile owned by defendant George A. Holmes, of which he was an occupant, in an easterly direction on said route 6; that defendants George A. and Marie Holmes negligently and carelessly operated their automobile so that it collided with plaintiff’s car; that “the defendants were driving their automobile on the wrong side of the highway at an excessive speed, zigzagging and disregarding their respective duties for the safety of others”; that plaintiff was at all times in the exercise of due care and caution for her own safety; and that she suffered personal injuries resulting in damage to her of $200.

Defendants filed a joint and several statement of defense and a joint and several counterclaim, in which George A. Holmes acknowledged ownership of the car in which defendants were riding, admitted that the accident occurred at the time and place alleged by plaintiff and that Mrs. Holmes was driving at the time in an easterly direction. The statement of defense then denied that defendants were negligent in the management, operation and control “of their said automobile” and averred that plaintiff was proceeding at an excessive rate of speed and that had she “been travelling at a normal rate of speed she would not have collided with the automobile of defendants”; and that such damage, if any, suffered by plaintiff was due to her own negligence rather than to any negligence on the part of defendants. Defendants’ counterclaim set forth the damages suffered by them respectively.

The parties went to trial on plaintiff’s second amended statement of claim and defendants’ statement of defense and counterclaim. At the conclusion of the presentation of the evidence by both sides plaintiff was allowed to file, over defendants’ objection, a third amended statement of claim which injected for the first time the element of damage to the automobile driven by plaintiff and increased the damages claimed from $200 to $1,000.

While the evidence is conflicting as to some of the incidents of the occurrence, it is undisputed that defendant George A. Holmes was the owner of the automobile which his wife, defendant Marie Holmes, was driving; that he was riding in the front seat, beside her to the right; that route 6 is a two lane east and west highway; that Marie Holmes was driving the car behind a school bus, going in an easterly direction in the eastbound traffic lane; that she turned into the westbound traffic lane from behind the bus to pass it; and that the Holmes car collided with the automobile which plaintiff was driving in a westerly direction in the westbound traffic lane.

There was ample evidence to justify the verdict as to the guilt of both defendants unless it can be said that it was not proved that Marie Holmes was the agent or servant of George A. Holmes in driving his automobile at the time of the accident. The rights and liabilities of the parties must be determined according to the law of Indiana where the accident occurred, and it is true that under the law of that State the mere ownership of the automobile by defendant George A. Holmes did not render him liable. It is also true that the mere fact of the marital relation does not establish an agency between husband and wife.

It is insisted that the only evidence as to G-eorge A. Holmes was that he was the owner and an occupant of the automobile which his wife was driving and that the trial court therefore erred in not sustaining his motion for a directed verdict as to him. In Willis v. Crays, 84 Ind. App. 253, where the facts were almost identical and a similar contention made, the court said at pp. 255, 256: “It developed at the trial that the alleged agent was the husband of appellant. Both appellant and her husband testified that while the automobile belonged to appellant, she had loaned it to him for the trip on which he was going for business of his own, and that he had invited appellant to go with him. It has been decided by this court in Smith v. Weaver, Admx. (1919), 73 Ind. App. 350, 124 N. E. 503, in effect, that the mere ownership of an automobile by a wife and its operation by her husband at the time of an accident is not sufficient to charge her with the negligence of her husband in the absence of any showing that the automobile was at the time being operated in the course of her business or pleasure. In Potts v. Pardee (1917), 220 N. Y. 431, 116 N. E. 78, 8 A. L. R. 785, it was held that the fact that the automobile was owned by the defendant was prima facie evidence of her responsibility for the manner in which it was driven, but that such presumption remains only so long as there is not substantial evidence to the contrary. In Roper v. Carmel City Oil Co. (1918), 68 Ind. App. 637, 121 N. E. 96, it was held that the mere fact of marital relation does not establish an agency between husband and wife, but that such fact may be considered as a circumstance in determining the question of agency. The relation of principal and agent as between husband and wife may be shown by circumstantial evidence, Lindquist v. Dickson (1906), 98 Minn. 369, 107 N. E. 958, 6 L. R. A. (N. S.) 729, 8 Ann. Cas. 1024; Roper v. Cannel City Oil Co., supra; Martz v. Selig Dry Goods Co. (1921), 76 Ind. App. 135.

“In the instant case, facts and circumstances which the jury was authorized to consider in determining the question of agency were that appellant was the owner of the automobile, and that she was the wife of the driver; that she was present at the time of the accident, and sitting beside him permitting him to drive at a high speed. . . . From these circumstances the jury inferred that appellant was at the time of the accident responsible for the operation of the car by her husband as her agent, and chargeable with the negligent operation resulting in appellee’s injuries. It is true, as stated above, appellant and her husband testified that the car was being operated by the husband in the transaction of his own business, and that she was merely an invitee, but it is also true that the jury did not believe the statements of appellant and her husband as to the manner in which the accident occurred, and having discredited them in that testimony, the jury might, with equal propriety, not have accepted their testimony as to the question of agency. The jury had the opportunity of personal observation of the witnesses from which they could form some opinion of their character and intelligence, and the judge presiding at the trial had the same opportunity. He has refused to disturb the verdict upon the weight or insufficiency of the evidence to sustain it, and now with such evidence before us, but without the opportunity of personal observation, we will not reverse judgment of the trial court.”

In the instant case facts and circumstances which the jury was authorized to consider in determining the question of agency were not only that Holmes was the owner of the automobile, that he was the husband of the driver, and that he was present at the time of the accident, permitting her to drive the car as she did, but that Holmes, himself, had been doing the driving until he made a stop prior to the accident to purchase gasoline, “when his wife sat over in the seat and drove the car.” There was also evidence that Holmes told his wife to apply the brakes and that he actively participated in the operation of the automobile by “pulling the wheel out of her hands, trying to correct her.” From this evidence the jury was warranted not only in finding that the relation of agency existed but that Holmes was an active participant in the operation of the car. The motion to direct was properly denied.

It is urged that plaintiff failed to establish with the certainty required by law the elements of damage which the jury was permitted to consider and that the court erred in not excluding evidence offered by plaintiff as to the condition after the accident of the car which she was driving. Plaintiff’s witnesses were entitled to testify as to the damaged condition of such car after the collision to show the force of the impact as well as the point or points of contact of the automobiles, so that the jury might be aided in determining the issues from the physical facts as well as from all the other facts and circumstances in evidence. The record does not include the instructions and there is nothing before us to even intimate that any damages for the injury to the car plaintiff drove were included in the amount awarded by the jury’s verdict.

It is unnecessary to discuss defendants’ contention concerning the impropriety of plaintiff’s evidence that she “spent over $500 or $600.on my medical attention,” or its insufficiency to support an award of damages for money expended for medical services, except to say that, eliminating such testimony entirely from consideration, there was sufficient evidence as to her physical injuries and pain and suffering to warrant the verdict for $300 damages returned by the jury.

Other points are urged which we deem it unnecessary to discuss. The record is not free from error, but in our opinion substantial justice has been done between the parties and a retrial of this cause could only result in another verdict of guilt as to defendants.

The judgment of the municipal court is affirmed.

Judgment affirmed.

Friehd, P. J., and Scahlah, J., concur.


author: Mr. Presiding Justice Hebel

text:
    Rafael Gallegos, Appellee, v. The Aetna Life Insurance Company et al., Appellees. Appeal of Alejandra Cruz, Appellant.
    Gen. No. 39,192.

      Opinion filed October 20, 1937.
    Hubbard, Baker & Bice, of Chicago, for appellant.
    Depress, Buckingham, Jones & Hoppman, of Chicago, for certain appellees; Matthew Mills and Chas. O. Butler, both of Chicago, of counsel.
    Henry, Grodsky & Parry, of Chicago, for certain other appellees; William B. Henry, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

Alejandra Cruz, an intervening petitioner, is appealing from a judgment in a suit on a contract of insurance issued by the Aetna Life Insurance Company, a corporation, in which the court refused to set aside the judgment entered on March 13, 1936, finding Jesus Bravo of Los Angeles, California, the beneficiary on a certificate issued to Marie Cruz in her lifetime under a group policy issued to Swift Employes Benefit Association by the Aetna Life Insurance Company. Intervening petitioner is the mother of the deceased, Marie Cruz, and was named beneficiary by the said Marie Cruz when the certificate was issued to her. Thereafter, on June 6, 1930, the deceased in her lifetime changed the beneficiary to J esus Bravo, a cousin.

The pleadings in the proceeding are based upon a suit instituted by Bafael Gallegos, the husband of the deceased, Marie Cruz, on the 14th day of July, 1934, wherein he sued the Aetna Life Insurance Company in the municipal court of Chicago as husband of Marie Cruz, deceased, and also as assignee of the rights and interest of J esus Bravo of Irapuato, Mexico, the beneficiary named in Certificate No. 101518 issued to Marie Cruz, a member of Swift Employes Benefit Association under a group life insurance policy issued by the said Insurance Company to Swift Employes Benefit Association.

Thereafter, the defendant, Aetna Life Insurance Company, petitioned the court to make Jesus Bravo of Irapuato, Mexico, party defendant, alleging that the said Bravo was making some claim to the avails of said policy.

Thereupon the said Jesus Bravo of Irapuato, Mexico, filed an intervening petition setting up that under Certificate No. 101518 issued to Marie Cruz, an employee of Swift Employes Benefit Association, under Group Policy 3380, Marie Cruz in her lifetime, on the 6th day of June, 1930, changed the beneficiary and named him, Jesus Bravo, as beneficiary, and that the said Marie Cruz departed this life on the 16th day of July, 1932, and that the petitioner was entitled to the avails thereof.

The Aetna Life Insurance Company filed its affidavit of merits admitting that it issued a group insurance policy to Swift & Company Employes Benefit Association No. 3380 under the terms of which the defendant insured the life of Marie Cruz in the sum of $2,000, and that the said insured died on the 16th day of July, 1932, and that Jesus Bravo was beneficiary under said policy.

The insurance company further averred in its affidavit of merits that it had no knowledge as to whether Rafael Gallegos, the plaintiff in the action, was the husband of Marie Cruz, and it had no knowledge as to whether Jesus Bravo, on the 20th day of January, 1934, at Irapuato, Mexico, assigned and transferred his interest in the proceeds of said policy and certificate of insurance to Rafael Gallegos as claimed by the plaintiff; that on the 10th day of April, 1934, the insuranee company was served with notice by Jesus Bravo that the said assignment was void and of no legal effect and was obtained from Jesus Bravo through fraud and misrepresentation.

The insurance company further averred in its affidavit of merits that a further claim to the proceeds of the policy and certificate of insurance had been made by one Carlos Wiechers Quijano by virtue of a certain supposed assignment from the said Jesus Bravo and that the said Jesus Bravo and Carlos Wiechers Quijano, on petition of the defendant, had been made additional parties defendant.

The insurance company averred in its affidavit of merits that it was ready, willing* and able to pay the proceeds of the policy and certificate of insurance to the party or parties decreed by the honorable court to be entitled to the same.

Thereafter, Carlos Wiechers Quijano, filed an intervening petition setting up the facts about the policy and the certificate of insurance to Marie Cruz, and that the original beneficiary in the policy was Alejandra Cruz, and that on June 6, 1930, Jesus Bravo was named successor beneficiary in place of Alejandra Cruz, and that Marie Cruz departed this life on the 16th day of July, 1932; that on the 10th day of April, 1934, at Irapuato, Mexico, by separate instrument, and for good and valuable consideration, said Jesus Bravo as such beneficiary, assigned and transferred his interest in and to said policy and certificate and all the proceeds thereof to Carlos Wiechers Quijano; that he, the intervening petitioner had served notice of an assignment upon the insurance company, and the intervening petitioner asked that judgment be entered in the sum of $2,000 in his favor; that on the 19th day of November, 1935, Jesus Bravo of Los Angeles, California, filed an intervening petition in said suit setting up the facts of the execution of a group life insurance policy, No. 3380 and the certificate issued to Marie Cruz in the sum of $2,000. Further, that the original beneficiary was Alejandra Cruz, and that on the 6th day of June, 1930, said Marie Cruz named the said Jesus Bravo, now of Los Angeles, California, successor beneficiary.

Upon a hearing the court found the issues between the plaintiff and the intervening claimants, defendant, in favor of the intervening claimant Jesus Bravo of California and against the Aetna Life Insurance Company, and assessed damages in the sum of $2,000 in favor of Jesus Bravo.

Thereafter Alejandra Cruz, after judgment was entered, asked leave and was allowed to file an intervening petition in which she sets up that she is the only legal beneficiary under the certificate and that the attempted change of beneficiary to Jesus Bravo, a cousin, was invalid.

The court refused to set aside the judgment finding Jesus Bravo of Los Angeles beneficiary under said policy and refused to find Alejandra Cruz the legal beneficiary named in deceased’s Certificate No. 101518. It is from this order that the intervening petitioner Alejandra Cruz appeals.

From the facts in evidence it appears that Marie Cruz, in April, 1929, was an employee of Swift & Company and a member of Swift & Company Employes Benefit Association; that Swift & Company Employes Benefit Association held a group life insurance policy with the Aetna Life Insurance Company No. 3380, and said Marie Cruz, as a member of the Employes Benefit Association, on the 22nd day of April, 1929, made application for group life insurance, naming* her mother Alejandra Cruz as beneficiary. A certificate was issued to Marie Cruz No. 101518 for the sum of $2,000, and on the 6th day of June, 1930, the said Marie Cruz purported to change the beneficiary under said policy to Jesus Bravo, a cousin.

From the evidence in the record, Jesus Bravo was not a cousin of Marie Cruz, and she did not have a relative by that name.

Swift & Company Employes Benefit Association was a nonprofit, voluntary association established and carried on for the sole benefit of its members and their beneficiaries and not for profit. There was a trust agreement dated July 1, 1907, entered into by the parties named for the benefit of employees of Swift & Company, which recites in part as follows:

“July 1, 1907

“Whereas, The said parties of the first part are desirous of providing for themselves, and such other persons who shall become beneficiaries under this Deed of Trust, benefits in case of sickness, accident, or death, and for that purpose are desirous of providing for the safekeeping and management of all funds that may be obtained or contributed for said purposes; and

( C

“Whereas, it is desired by this Deed of Trust to definitely state the terms of this Trust and the plan of providing for such benefits in case of sickness, accident or death;

“Now, Therefore, In consideration of the premises, it is agreed as follows:

“First: The purpose of this Deed of Trust is to provide for the establishment of a voluntary association, which shall be known as Swift & Company Employes Benefit Association, and also to provide for the custody, management and investment of the funds of said Association, and for the payment out of said funds of definite amounts to such persons as contribute thereto, and who shall be known as ‘Members of the Benefit Association,’ when, under the Buies of the said Association, they are entitled to such payment, by reason of disability, and also in the event of the death of a member, for the payment of the amounts provided by the Rules of said Association to the person or persons designated by him, or the person legally entitled thereto.”

By the rules of Swift & Company Employes Benefit Association, it is provided: “1. The object of Swift & Company Employes Benefit Association is the establishment and management of a fund for the payment of definite amounts to such employes as contribute thereto, who shall be known as ‘ Members of the Benefit Association,’ when, under the Rules, they are entitled to such payment by reason of disability, or, in the event of their death, to the relatives or other beneficiaries designated. ’ ’

The rules then provide that each employee, in order to become a member must file an application, the form of which is provided for in the rules of the association.

The above deed of trust was amended, and provides as follows: ‘ ‘ The Advisory Committee is authorized and may direct the Manager, for and on behalf of the Association, to enter into agreements with insurance companies for Croup Life Insurance for the benefit of such eligible members of the Association as may apply therefor, and subject to such rules and regulations as may be adopted from time to time by the Advisory Committee, provided no liability shall attach to the funds of the Association by reason thereof, except funds received for that purpose and those resulting from transactions under authority of this section.”

On the 27th day of August, 1926, Swift & Company Employes Benefit Association entered into an agreement with the Aetna Life Insurance Company for group insurance of such members of the benefit association as should apply for the same, under group policy No. 3380.

From an exhibit offered and received in evidence on behalf of the defendant Aetna Life Insurance Company, appears the following: “The Aetna Life Insuranee Company (herein called The Company) hereby agrees to pay an amount to be determined in accordance with the insurance schedule shown on the second page of this policy, on due proof of the death of any insured member of Swift & Company Employes Benefit Association, of Chicago, County of Cook and State of Illinois (herein called the Association). . . . This policy is issued for the term of one year from the Twenty-seventh day of August, 1926, in consideration of the application of the Association, which application is hereby made a part of this contract and a copy of which is attached hereto, and in further consideration of the payment on the date hereof of a monthly premium of Nine Thousand One 'Hundred Ninety-two and 72/100ths Dollars, and of the further payment of a monthly premium on the Twenty-seventh day of each succeeding month within said term, based on the amount of insurance then in force and calculated as hereinafter provided.”

The policy is signed by the president and the secretary of the insurance company. It also appears in evidence that corrections and alterations were made in the application for group life insurance, dated July 2,1926, entitled

“July 2, 1926

“For correction of application of Swift & Company Employes Benefit Association Group Policy No. 3380.

‘1 The Aetna Life Insurance Company is hereby requested and authorized to make the following corrections or alterations in an application for Group Life Insurance made by the undersigned employer, dated the 29th day of June, 1926.

“The application shall be changed and amended as follows: (After requesting corrections which are not material to this issue)

“Beneficiary as per Company’s form 2202-BB shall be amended to read as follows:

“It is requested that any sum becoming due on account of the death of any individual insured shall be payable to the beneficiary or beneficiaries designated by the insured and filed at the Home Office of the Company (subject to change at any time and as often as desired in accordance with the provisions to be stated in the policy). If any beneficiary so designated predeceases the insured, the interest of such beneficiary shall vest in the surviving beneficiary or beneficiaries, if any, but if no such designated beneficiary or beneficiaries survive the insured, or if no beneficiary has been designated as herein provided, the insurance shall be paid to the relative or relatives by blood or connection by marriage of the insured or to such other person or persons as the Association shall designate as equitably entitled to same.” and signed by Swift & Company Employes Benefit Association.

A further rider, Beneficiary Form No. 2202-BB Special, was attached as follows: “It is requested that any sum becoming due on account of the death of any individual insured shall be payable to the beneficiary or beneficiaries designated by the insured in writing and filed with the Company’s duly authorized representative at the headquarters of the Association or at the Home Office of the Company (subject to change at any time and as often as desired in accordance with the provision of the policy as amended by this rider). If any beneficiary so designated predeceases the insured, the interest of such beneficiary shall vest in the surviving beneficiary or beneficiaries, if any, but if no such designated beneficiary or beneficiaries survive the insured, or if no beneficiary has been designated as herein provided, the insurance shall be paid to the relative or relatives by blood or connection by marriage of the insured or to such other person or persons as the Association shall designate as equitably entitled to same.”

The certificate issued to Marie Cruz in her lifetime is substantially as follows: “The Aetna Life Insurance Co. of Hartford, Connecticut, has insured the lives of certain members of Swift and Company Employes Benefit Association, Chicago, Illinois, by a Group Policy of Insurance, No. 3380, and riders, issued and delivered to the Association. Under and subject to, the terms and conditions of said policy and riders, and the application or applications therefor, the life of Marie Cruz — -2187 a Member, is insured for the sum of $2,000, Alejandra Cruz — Mother Beneficiary, Signed Aetna Life Insurance Company by A. M. M. Brainard, President. Dated 4/22/29, Certificate No. 101518 — Beneficiary changed 6/6/30 to Jesus Bravo — Cousin. ’ ’

On the second page of the certificate is the following: “In the event of the death of any insured member at any time or place, from any cause whatsoever, the amount of insurance then in force upon his life will be paid to his last duly designated beneficiary or beneficiaries. The beneficiary may be changed at any time under and subject to the terms of the policy. If any beneficiary designated predeceases the insured, the interest of such beneficiary shall vest in the surviving beneficiary or beneficiaries, if any, but if no such designated beneficiary or beneficiaries survive the insured, or if no beneficiary or beneficiaries have been designated as provided in said policy, the insurance shall be paid to the relative or relatives by blood or connection by marriage of the insured, or to such other person or persons as the Association shall designate as equitably entitled to same. ’ ’

Substantially the above language is used in the rider designated “Beneficiary Form No. 2202-BB Special,” attached to the agreement of the insurance company.

The appealing intervening petitioner, Alejandra Cruz, points to the fact that Swift Employes Benefit Association is a corporation and is subject to the provisions of eh. 73, U 488, sec. 1 of Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 66.571 entitled, “Fraternal Beneficiary Societies,” wherein it is provided that a fraternal beneficiary society is declared to be a corporation, organized or carried on for the benefit of its members, and shall have a lodge system, with ritualistic form of work and representative form of government, and may make provisions for the payment of benefits in case of disability and death, or of either, resulting from either disease, accident or old age, of its members. In order to provide for the payment of benefits, the statute provided that the payment of death benefits shall only be paid to the families, heirs, blood relations, ascending or descending, wife, husband, father-in-law, mother-in-law, son-in-law, daughter-in-law,' brother-in-law, sister-in-law, step-father, step-mother, step-children, step-brother, step-sister, children by legal adoption, parents by legal adoption, affianced wife, or affianced husband of the member, a person or persons upon whom the member is dependent, a person or persons dependent upon the member, or a trustee for the sole benefit of any person or persons within the above classes. Within the above restrictions each member shall have the right to designate his or her beneficiary or beneficiaries, and, from time to time have the same changed in accordance with the laws, rules and regulations of the society, and no beneficiary shall have or obtain any vested interest in the said death benefits until the same has become due and payable upon the death of the member, provided, that any society may, in and by its articles of incorporation, laws or regulations limit the scope of beneficiaries within the above classes. And it is further contended by the petitioner the court has ordered that payment be made to one Jesus Bravo, who is not related to the deceased member or dependent upon the member.

Our first observation is that the corporation in question was organized without adopting a lodge system or requiring that initiation of its members be in accord with certain ritualistic form of admission. There is nothing, so far as we can determine from the record, which would indicate that Swift & Company Employes Benefit Association was organized to carry on for the benefit of its members, under the statute called to our attention.

This so-called Employes Benefit Association entered into an agreement with the Aetna Life Insurance Company, the defendant in this- case, for the issuance of life insurance policies for the benefit of Swift & Company’s employees who desired to make application for such insurance. The provisions of the trust agreement of the benefit association and those of the certificate of insurance issued to the deceased member in this case are largely alike, and the language would indicate that the insured had a right to designate a beneficiary or beneficiaries to whom the amount provided for in the certificate of insurance was to be paid upon the death of the member. However, the member in his lifetime had a right to change the beneficiary at any time, subject to the terms of the policy.

As far as we have been able to determine from the rules of the benefit association, as well as from the agreement with the insurance company, there is nothing which would indicate that the benefit association, acting for the benefit of its members, is subject to the provisions of the statute of our State entitled, “Fraternal Beneficiary Societies.” The defendant entered into a contract with the benefit association and the parties agreed upon the terms and the amount of insurance to be paid upon the death of the member and to whom. There is no restriction or limitation requiring the beneficiary named to come within a class as to relationship.

We are unable to agree with the defendant intervening petitioner that Swift & Company Employes Benefit Association was a nonprofit corporation, organized for the benefit of the employees and providing for payment of benefits to persons within a restricted class. A voluntary association for the benefit of employees of Swift & Company could enter into a contract providing for the payment of benefits to a person or persons not blood relations of the deceased. We believe we have indicated our reason for this conclusion, and it is our opinion that the court acted clearly and was guided by the trust deed of the benefit association and the contract entered into with the insurance company, the defendant here.

Little has been said upon the subject by any of our courts of last resort, but we are of the opinion that the matter is controlled altogether by the contract between the parties, and as we have already suggested, there is nothing in the contract which would indicate that the holder of a certificate is restricted by any provision in the contract in naming a beneficiary. In other words, we feel that there is no restriction controlling the subject except the provisions of the agreement and the contract, both of which instruments are set out in this opinion. The fact is that the deceased member in her lifetime undoubtedly had a right to change the beneficiary to whom the amount due upon her death should be paid, and the court properly entered the order that the last named beneficiary is entitled to the amount provided for in the contract of insurance, and the judgment entered thereon directing the insurance company to pay the amount to this last named beneficiary, Jesus Bravo, is affirmed.

Judgment affirmed.

Denis E. Sullivan and Hall, JJ., concur.


author: Mr. Presiding Justice Hebel Denis E. Sullivan, J.,

text:
    Annette Bransfield de Ronchi, Appellant, v. Northern Trust Company et al., Appellees.
    Gen. No. 39,245.
    Denis E. Sullivan, J., dissenting.

      Opinion filed October 20, 1937.
    Eugene Vincent Clarke, of Chicago, for appellant.
    George E. Billett and John J. Grealis, both of Chicago, for appellees.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal prosecuted by the plaintiff from a decree entered in the circuit court of Cook county dismissing the second amended complaint filed by her, on motion of the defendants to strike the complaint. The suit was instituted on December 18, 1934. The complaint filed by the plaintiff was stricken by the court and leave was granted the plaintiff to file an amended complaint, which was thereafter filed. The court allowed the defendants’ motion to strike the amended complaint and again granted leave to the plaintiff to file her second amended complaint. A similar motion was made by the defendants to strike the second amended complaint, and upon the allowance of this motion by the court, the suit was dismissed and the plaintiff appealed from the final order to this court.

The second verified amended complaint, filed on August 19,1935, alleges that the plaintiff was the legal wife, and is now the widow of Ignatius M. Bransfield. On February 5,1931, she signed a certain paper, a copy of which was attached to the complaint and marked Exhibit A, which is a postnuptial contract, under the terms of which the plaintiff releases all her rights which she had acquired as the wife of said Bransfield in the property which was then owned by him; that said contract was signed in the office of Oswald D. Luby, attorney for Bransfield; that at the time of signing plaintiff was sick and unable to understand what she was doing. She had not been informed in any way as to the nature of the contract, and had no knowledge of its contents, and she did not read the same, nor was it read to her; that Bransfield was the owner of property in the value of $268,000, and that she did not possess any property except personal articles of clothing, which did not exceed in value $300; that Oswald D. Luby was the owner of all of the stock of the Corporation Accounting Company, and for 17 years said company had acted as accountant for the corporations of which Bransfield was president. Bransfield died on April 19, 1932, leaving a will which was admitted to probate and letters testamentary issued to the Northern Trust Company, under which will a testamentary trust was created of all the property left by Bransfield, naming plaintiff as beneficiary of a 40 per cent interest in the income of said trust estate.

Prior to learning that the contract was voidable and during the course of administration of the estate, plaintiff consulted counsel as to the validity of the postnuptial contract, and was advised that the contract was valid and binding, and that plaintiff was under duty to elect to take under the will of the said Bransfield, or to take nothing. Plaintiff acting on said advice and believing she was compelled to take under the will and had no right to renounce the will, signed the election to take under the will within the probate year in accordance with the laws of Illinois. Plaintiff alleges that there was no consideration for the post-nuptial contract; that at the time of the signing of same there was a fiduciary relationship between the plaintiff, Bransfield and Luby, and because of these facts and the condition in which the plaintiff was at the time of signing, the said contract is voidable. After signing the election, plaintiff consulted other legal counsel and was advised shortly before the filing of this suit that because of the circumstances under which the postnuptial contract was signed, said contract is not binding and is voidable; that if no election had been made she would have been entitled to receive at least one-third of the estate in her own right, instead of 40 per cent of the income therefrom, and that the interest which she would take, if no election had been made and had she renounced it, would be larger by approximately $100,000 than that provided by the will. Plaintiff alleges that at the time of signing said election she was under the misapprehension of fact that she had signed a binding postnuptial contract and was compelled to elect to take under the will and had no right to renounce the will, and that the election was made under a mistake and misapprehension of fact; that had she known the postnuptial contract was voidable and had known her rights, she would not have executed the election, and that said election was made under a mistake of facts as to her rights. Plaintiff alleges that the defendant, Northern Trust Company, has applied for an order giving it leave to turn over all the assets of the estate to a trustee, and that the probate court may grant the defendant’s application at any time, and if it does she will be unable to withdraw her election. Plaintiff alleges that equity should intervene and set aside the postnuptial contract, take jurisdiction of the entire estate, grant leave to the plaintiff to withdraw her election, and renounce the will, if the postnuptial contract is held to be null and void, and determine the interest of plaintiff in said estate.

Exhibit A, attached to the complaint, is a copy of the postnuptial agreement. Omitting the formal part, it is as follows: “Witnesseth, that for and in consideration of the release, relinquishment and conveyanee of said second party to first party, hereinafter fully set forth, the said party of the first part hereby releases, relinquishes, quitclaims, sells, assigns and conveys all his rights, title and interest which said first party, as the husband of said second party, under the laws of the State of Illinois, may have acquired or which he may hereafter acquire during the lifetime of said second party, or at her death, by reason of the marriage that now subsists between said parties hereto, in and to all the property, both personal and real, which now is or hereafter during the lifetime or at the death of said second party may be owned by said second party, Annette T. Bransfield. And, for and in consideration of the above release, relinquishment and conveyance by said first party to said second party, the said party of the second part hereby releases, relinquishes, quitclaims, sells, assigns and conveys all her rights, title and interest which said second party, as the wife of said first party, under the laws of the State of Illinois, may have acquired or which she may hereafter acquire during the lifetime of said first party or at his death, by reason of the said marriage that now subsists between said parties hereto, in and to all the property, both personal and real, which now is or hereafter during the lifetime or at the death of said first party may be owned by first party, Ignatius M. Bransfield. This agreement and conveyance is, mutually intended to be, and the same is hereby expressly made and intended by each of the parties hereto as a mutual release relinquishment and conveyances of all right, title and interest that may now be or shall hereinafter be during the lifetime or at the death of either of said parties hereto, acquired by the other, by virtue of the said marriage that now subsists between said parties hereto under the laws of the State of Illinois in and to all the property, both personal and real, of the other, respectively; and it is the intention of the parties hereto, to mutually release and waive all benefits of the laws of the State of Illinois relating to husband and wife, dower, homestead, etc., and forever bar each other, respectively, from any action to recover any interest that may now be or shall hereafter during the lifetime or at the death of either of said parties hereto to be acquired by the other in the property, both personal and real of the other respectively.”

The plaintiff complains that the decree is erroneous because the fact that an election was made to take under the will by the plaintiff, and the fact that no renunciation was made within the probate year, did not constitute a reason for dismissal of the complaint, since an election is not binding if not made with knowledge of the facts or if made by mistake or under a misapprehension or in ignorance of the facts or the rights of the elector, and may be withdrawn.

The answer of the defendants to this complaint is that the plaintiff by filing her written election in the probate court, within the year after issuance of letters testamentary, to take under the will of her deceased husband and by failing to file her renunciation of said will within the probate year, plaintiff became barred under the Illinois statute from claiming the share of her husband’s estate to which she would have been entitled if her husband had died intestate.

The statutory provisions contained in ch. 41 of Cahill’s Ill. Rev. St. 1933, secs. 1, 10, and 11, are material in the consideration of the questions that have been called to the attention of this court. They are as follows:

“Par. 1. Curtesy abolished — Husband and wife to have dower — Equitable Estates — Interest of surviving spouse in personalty. Section 1. The estate of curtesy is hereby, abolished, and the surviving husband or wife shall be endowed of the third part of all lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall be subject to such dower, and all real estate of every description contracted for by the deceased husband or wife, in his or her lifetime, the title to which may be completed after his or her decease. And except where the deceased spouse died intestate, the surviving husband or wife, in case the deceased spouse died leaving surviving a child or children or descendants of a deceased child or children, shall also be entitled to one-third of all the personal property owned by the deceased spouse at his or her death, after all just debts and claims against such estate are fully paid, as and for his or her absolute estate forever; or, in case such deceased spouse left no child, children, or descendants of any deceased child or children, said surviving husband or wife shall be entitled to one-half of such personal estate of such deceased spouse, after all just debts and claims against such estate are fully paid, as and for his or her absolute estate forever.”

“Par. 10. Provision in will bars dower — Election— Renunciation — Waiver of Dower. § 10. Any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving husband or wife, shall, unless otherwise expressed in the will, bar the dower and other rights of such survivor given by section 1 hereof, unless such survivor shall elect to and does renounce the benefit of such devise or other provision, in which case he or she shall be entitled to such dower and other rights as hereinbefore defined: Provided, that in the event of such renunciation, the surviving husband or wife shall receive as his or her absolute estate, in lieu of dower in the real estate of which the deceased died seized, one-third of each parcel of real estate which the deceased owned at the time of his death, and which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife in which such surviving husband or wife shall waive his or her right of such dower. Such waiver may be effected by either or both of the following methods: 99

“Par. 11. Eenunciation must be within year after letters. § 11. Any one entitled to an election under either of the two preceding sections shall be deemed to have elected to take such jointure, devise or other provision, unless within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision.”

In the discussion of cases which come within the provisions above quoted, the Supreme Court, in one of its late opinions in the case entitled Stubblefield v. Howard, 348 Ill. 20, said: “The first question is whether the husband, by accepting the provisions of the will and not renouncing thereunder, was entitled to dower. . . . Section 10 (of the Dower Act) provides that any devise of land, or estate therein, or any other provision made by the will of a deceased husband or wife for a surviving husband or wife, shall, unless otherwise expressed in the will, bar the dower and other rights of such survivor given by section 1 thereof, unless such survivor shall elect to, and does, renounce the benefit of such devise or other provision, in which case he or she shall be entitled to such dower or other right as thereinbefore defined. Section 11 provides that anyone entitled to an election under either of the two preceding sections shall be deemed to have' elected to take such jointure, devise or other provision unless within one year after letters testamentary or of administration are issued, he or she shall deliver or transmit to the county court of the proper county a written renunciation of such jointure, devise or other provision.”

Citing the case of Warren v. Warren, 148 Ill. 641, with approval, the court commented on what was said in that case as follows: “It was held that a devisee cannot accept the will as to dower and reject it as to the provisions which it makes for a homestead or residence ; that where the widow fails to renounce the provisions for her by her husband’s will within one year after the issue of letters upon her deceased husband’s estate she will be held as electing to take under the will and will not be entitled to dower in the testator’s lands; that under the peculiar provisions of our statute the provisions in a will in favor of the testator’s widow are declared to be a bar of her dower unless the intention that they shall not be a bar is expressed in the will itself; that the statute makes the silence of the testator the conclusive index to his intention, and the failure to renounce within a specified time is conclusive evidence that the surviving husband or wife has elected to take under the will.”

Other cases are referred to in the opinion of the court which have a material bearing upon the question before us, one of which is entitled Ellis v. Dumond, 259 Ill. 483, wherein it was held that the acceptance by the widow of the provisions made for her in the will bars her right to dower in the estate disposed of by the will. Other cases referred to by the court are Palenske v. Palenske, 281 Ill. 574, and Schaffenacker v. Beil, 320 Ill. 31.

See also the case of Pearce v. Pearce, 281 Ill. 194, and the cases cited in the opinion of the Supreme Court. In the Pearce case the court said: “By his acts in performing those conditions, as alleged in his will, he clearly indicated his intention to accept the provisions of the will. The statute made it his absolute duty to renounce the provisions of the will within the time specified by the statute before he could recover dower in any real estate of the deceased. The mere filing of his bill in this case to have his dower assigned is not equivalent to such an election. (Scheible v. Rinck, supra, 195 Ill. 636). The court therefore properly sustained the demurrer to the bill of appellant, because it was incumbent upon him to aver in his bill, and prove, that he had renounced the provisions of the will in accordance with the provisions of said sections 10 and 11. Not only does the bill fail to make such allegation, but it shows clearly on its face that he was not relying upon or intending to make any such renunciation. ” .

An interesting opinion was filed in Scheible v. Rinck, 195 Ill. 636, wherein the Supreme Court held that a renunciation of the provisions of the will must be by way of a specific written renunciation filed in the probate proceedings within the one-year period. It also appears in that case the will devised to the testator’s husband an estate for life in all of her real property and bequeathed to him her furniture therein. Within the probate year her husband filed a bill to contest the will and shortly after the expiration of the probate year he filed in the probate proceedings his written renunciation of the will. The court held that the bill to contest the will did not amount to a renunciation and did not suspend the running of the limitation, and that the written renunciation filed after the expiration of the year was ineffective.

The defendants in their motion to strike the bill of complaint urged that the facts alleged in the bill were alleged upon a mistake of law and not upon a mistake of fact.

The plaintiff contends the authorities hold that where the kind of mistake urged in the bill of complaint is made, in such cases relief will be given, and cites the case of Hanson v. Clark, 246 Ill. App. 496. In that case the widow made the mistake of assuming the statute applied to her, when in fact it did not, and the court granted the relief prayed for by her, and permitted the widow to withdraw her renunciation filed within the preceding year. In another case entitled Peter v. Peter, 343 Ill. 493, and cited by the plaintiff, the court, in passing upon the question involved in that case, said: “Counsel for appellees argue that though the widow was mistaken in believing that the deeds from her husband vested the property in her, her mistake was one of law, and that equity will not relieve against a mistake of law. While it has been stated as a general rule that a mistake of law pure and simple is not adequate ground for relief in equity, yet even when the mistake is one of law equity sometimes intervenes. (Moore v. Shook, 276 Ill. 47.) Courts of equity have aided mistaken parties because of the demands of justice. Private legal rights, interests, duties or liabilities are always more or less complex, particularly to the layman. They depend upon conditions of fact as well as rules of law, and a concrete notion of a private legal right, interest or liability is not readily separated from the facts on which it depends. Such mistakes may therefore be, and frequently are, properly considered as mistakes of fact. There is no fact relating to private rights, interests, estates or liabilities that does not more or less involve rules of law, as where A proves that he is the owner of certain real estate. Such is proved as a fact, yet this fact rests upon the law relating to the sufficiency of the conveyance, the competency of the grantor to convey, and in some instances the form of the instrument, but A does not the less prove a fact because that fact involves some relation of law.”

The answer of the defendants to the contention is that the plaintiff filed her election under a mistake as to the validity of the postnuptial contract between her and her deceased husband, and such election under a mistake of law cannot be urged as a ground for relief.

The statement in the plaintiff’s pleading that “the said contract is a purported legal document containing legal terms which she could not understand and does not now understand” seems to be inconsistent with the statement in the same pleading that before filing her election to take under the will, she (the plaintiff) “consulted legal counsel as to the validity of said post-nuptial contract.” It was after this conference with her counsel that she filed this election to accept the provisions of the will, and this election, it is to be noted, was filed within the year after the will was admitted to probate.

The defendants cite an interesting case on the question of what effect advice of counsel would have upon plaintiff’s position that she was unduly influenced and thereby taken advantage of, namely, Holbrook v. Tomlinson, 304 Ill. 579. The court in passing upon the question as to the effect of such advice given to her by her attorney said: “Under the authorities it is clear that relief should not be granted in this case as prayed, under the allegations of the bill and the proof presented in support thereof. The appellants place their reliance largely on the alleged erroneous advice of an attorney. The erroneous advice of an attorney is not sufficient ground for relief in equity as to an alleged mistake in a written instrument. (Weed v. Weed, 94 N. Y. 243; Treadwell v. Clark, 108 N. Y. Supp. 733). A general mistake of law, pure and simple, is not adequate ground for relief because of such mistake. (2 Pomeroy’s Eq. Jur. — 3d ed. — sec. 842; Goltra v. Sanasack, 53 Ill. 456.) In Tilton v. Fairmount Lodge, 244 Ill. 617, this court said (p. 622): ‘Where the terms of the written instrument were used deliberately and knowingly by the parties, even though Under a misapprehension of their legal effect, there can be no relief and no reformation of the contract.’ It is obvious from these authorities that even if it be conceded that, as argued by counsel for appellants, they made a mistake because of the incorrect legal advice of attorney Brown, the trial court rightly dismissed the bill for want of equity. It is proper to say, in view of the claim as to Brown advising improperly, that if his testimony be taken as a basis of proper comment on his action, it cannot be said that he acted improperly or should be subject to criticism because appellants misconstrued what he said as to the rights of the widow in the property. It is obvious that the widow and daughters did not fully understand the use of some of the legal terms used in the discussions. It is also obvious from the record, as already stated, that there was no intention on the part of any of the parties to this division agreement fraudulently to mislead. Appellants agreed in the selection of Brown as counsel for all the parties, and they were not misled or deceived in any way by appellee or anyone representing her.”

As we have stated before in this opinion, it was upon advice of plaintiff’s counsel that she filed her election within the time limited by statutory regulation, and as far as the allegations contained in the second amended bill of complaint are concerned, we are unable to find one which charged the defendants or their attorney with making misleading statements for the purpose of taking advantage of the plaintiff. To satisfy herself as to the legal effect of the postnuptial contract between herself and her husband after his death, plaintiff conferred with an attorney and after this conference she filed her election to take under the will. In order that there may be relief there must be something appearing from the allegations which would indicate fraudulent conduct of the defendants which persuaded, her to sign this contract, and under the authorities cited in this opinion, even if plaintiff had not filed her election to take under the will, still, by her failure to file a written renunciation of such'will it will be presumed, as a matter of law, that she elected to accept the provisions of the last will and testament of her late husband.

The plaintiff contends that the motions to strike the second amended complaint should have been denied on the ground that the same were dilatory and were not filed within the time provided by ch. 110, § 259.8, subd. 4, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 105.08, and there was no order extending the time for filing the motions nor any good cause shown on special motion after notice as required by subdivision 5. Subdivision 4 is as follows: 1 ‘4. Unless otherwise provided, a motion attacking a pleading must be filed and served within 20 days after the last day allowed for the filing of the pleading attacked.”

The last day allowed for the filing of the pleading attacked was August 19', 1935, and the motion to strike now under consideration was filed after the 20 days had expired, and as a fact, the motion of the Northern Trust Company was filed on October 21, 1935, and the motion of the other defendants was filed on September 25, 1935.

To this contention the defendants reply that the question was not raised by the plaintiff until the argument of the motions was in progress before the trial court. At that time, on motion of the defendants, leave was given by the court for the defendants to show cause for the filing of the motions to strike after the period provided by rule 8. Cause was accordingly shown by way of affidavits and the court thereupon proceeded to sustain the motions to strike.

The defendants contend that the question of the time of filing of the motions to strike had been waived by the plaintiff; first, by agreement between the parties at the time the order was entered giving the plaintiff leave to file the second amended complaint., as stated in the affidavit showing cause for filing late; secondly, by not making any motion or objection attacking the motions to strike because of their having been filed late; thirdly, by recognizing the status of the case on the motions to strike until the same were being argued on their merits. The hearing on the motions to strike was continued from time to time, without objection, by the plaintiff and sometimes on her own motion. The courts have frequently held that the question of the time of filing a pleading is waived by failing to attack the pleading and by recognizing it as on file and at issue. In support of this contention the defendants have cited numerous cases. From the facts as presented by the parties upon this question, we are of the opinion that it was within the jurisdiction of the court to extend the time within which to file a motion of the character we are now considering. This is clear from subd. 5 of rule 8 above referred to, which is as follows: “5. The judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time. ’ ’

It is evident that after the expiration of the time, the court, upon plaintiff’s affidavits as they were presented, considered the time extended, to which no objection was made by the plaintiff other than stated in this opinion.

Accordingly, the decree of the court dismissing the second amended bill of complaint is affirmed.

Decree affirmed.

Hall, J., concurs.

Denis E. Sullivan, J.,

dissenting: I cannot concur in the decision reached in the foregoing opinion. I think the judgment should be reversed and the cause remanded with directions that an order be entered overruling the motion to strike and requiring that an answer be filed to the complaint.


text:
    Ruth Guelzo, Appellant, v. Carl Guelzo, Appellee.
    Gen. No. 39,316.
    Opinion filed October 20, 1937.
    Olis, Vasalle & Laphstskas, of Chicago, for appellant.
    Nisseu N. Cross, of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff as petitioner from an order denying the prayer of the petition, which is in the nature of a bill of review to vacate and set aside the decree of divorce entered by the court on June 5, 1935, in a proceeding based upon the complaint for divorce of this petitioner filed on the 29th day of May, 1935, alleging acts of cruelty, and praying for a dissolution of the marriage between the plaintiff and the defendant, and that the plaintiff be awarded the custody of Carl Guelzo, Jr., a minor son of the age of 11 years.

The petition here was filed on June 9,1936, and as a ground for vacating the divorce decree petitioner alleges that she lived and cohabited with the defendant from the date of the last act of cruelty on May 24, 1935, to May 27, 1935, also on the night of the divorce hearing, on June 3, 1935, and as a result the acts of cruelty were condoned.

It is further alleged in the petition that the attorney appearing for petitioner in the divorce proceeding was retained by the defendant for her, that this attorney’s office is in the same suite of offices as the office of the attorney appearing for the defendant, and that the attorney now appearing for the petitioner was substituted for her attorney in the divorce proceeding1.

There is the further charge that there is no evidence in the record as to the earning capacity of the defendant, nor as to the extent of his wealth, and no evidence that the plaintiff was a resident of Cook county and State of Illinois, for more than one year prior to the filing of the bill of complaint.

The defendant filed a motion to strike this petition and also filed an answer denying the facts alleged in the petition. A hearing was had, and on July 10,1936, an order was entered by the court finding that Ruth E. Guelzo and Carl M. Guelzo did not cohabit together as husband and wife from and prior to and since April 30, 1935, up to and including June 5, 1935, and further that the petition of Euth Guelzo praying that the decree of divorce entered on June 5,1935, be vacated and declared for naught, be and the same is denied.

The decree of divorce entered by the court recites substantially that the plaintiff appeared in person with her attorney and the defendant by his attorney, and that the court heard the testimony taken in open court in support of the complaint, a certificate of which evidence was filed therein. The court after finding that it had jurisdiction of the parties and the subject matter, further found that the plaintiff is and had been prior to the filing of the complaint, an actual resident of Cook county, and has been a resident of the State of Illinois for more than the year next before the filing of the complaint.

And further, that on August 3, 1921, the parties were lawfully married, that during that period they lived and cohabited together, and that a child was born of said marriage and that the child is now 11 years old.

For grounds of divorce the court finds that the defendant was guilty of extreme and repeated cruelty toward the plaintiff on April 30, 1935, and on May 24, 1935. Upon said grounds it is ordered by the court that the bonds of matrimony theretofore existing between the plaintiff and the defendant be and the same are dissolved, and that the plaintiff be awarded the complete care of the minor child without any interference, and that the defendant be permitted to see the child at any reasonable time, and that the defendant pay to the plaintiff as alimony and for support of plaintiff and the minor child, the sum of $50 per week.

That the defendant turn over to the plaintiff as her property all the household furnishings, except the silverware, and that the plaintiff’s right of dower in and to all the real estate owned by the defendant be waived and released.

One of the points made is that the petitioner, the plaintiff in the divorce proceeding, complains that there is no evidence which establishes the residence of the plaintiff in the county of Cook and State of lili-' nois. We have noted from the decree itself that the court entered an express finding that she has resided in the county of Cook and State of Illinois for the required period fixed by law, and this is in conformity with the allegation of the bill of complaint filed by the plaintiff, and admitted by the defendant in his answer. While it is true that it is necessary to establish residence in this county and State for the period provided by law, we are of the opinion that this frndiug of fact is not subject to attack.

In support of petitioner’s position, this court’s attention is called to the case of People v. Case, 241 Ill. 279, which was a proceeding in which the State’s Attorney of Cook county, on the relation of the committee on grievances of the Chicago Bar Association, filed in the Supreme Court an information to disbar, or, in the alternative;, to suspend or otherwise discipline, as the court in its discretion might deem proper, Theodore Gr. Case, an attorney, on the ground that he procured a decree of divorce in the circuit court of Cook county by fraudulent collusion with the complainant and the defendant therein, and by fraudulently concealing from the knowledge of the judge the fact that substantially the same matters involved in the divorce proceeding had previously been heard and determined adversely to his client in a prior divorce proceeding, the petitioner points to that portion of the opinion, which she contends supports her position on the question of the necessity of evidence being heard by the court in order that residence be properly established, as fixed by the statute in this State, where the court cited Schmidt v. Schmidt, 29 N. J. Eq. 496, and quoted therefrom as follows: 1 ‘ The divorce petition is not evidence of any fact stated in it. To permit parties in divorce suits to establish, merely by the allegations and corresponding admissions of bill or petition and answer, the facts which are necessary to give the court jurisdiction, would be to practically annul important provisions of the law, and leave to simple, unverified (and perhaps fraudulently collusive) averment and admission, facts which the legislature intended should be established by proof.” It appeared from her testimony in this case that the defendant acted on the assumption that the decree was valid, and contracted another marriage.

In the case of Guggenheim, v. Guggenheim, 189 Ill. App. 146, the court in its opinion said: “Where in a divorce suit the court assuming to grant the divorce has general jurisdiction of the subject of divorce, but by the statutory law bona fide resident of the complaining party in the jurisdiction is one requisite for the right to the divorce, or to any correct action of the court thereon, and where a bill brought for a divorce contains an allegation of such residence by the complaining party, and the court finds as a fact that it exists, then in neither a direct nor collateral proceeding attacking that decree as void, is a court of equity obliged or justified in so declaring it, or in vacating or setting it aside, at the instance of a complaining party, who has secured or participated in the false finding as to residence, after a long interval of time has elapsed, in which interval that party has him or herself deliberately acted on the assumption that the decree is valid and contracted another marriage; . . .”

But it is to be noted that the evidence heard in the proceeding to set aside the decree does not attempt to establish, nor is there an allegation of fact in her petition, that she is not a resident of this State. The only point the petitioner makes is that there is lack of evidence, and by this proceeding seeks to set aside the decree after she herself testified that she was aware of the marriage of the defendant in this proceeding subsequent to the entry of the decree. Under the facts as we have them before us she is estopped at this time, because of the intervening rights and interests of third parties, from being entitled to the relief she seeks in this petition.

The further point is made in the petition that the acts of cruelty were condoned by the parties by their living and cohabiting together at the time and after the decree was entered. The court based its finding upon the facts and we are of the opinion that the evidence sustains the finding.

At the time the plaintiff was heard upon her petition for divorce and the custody of the child, she testified that the plaintiff as well as the defendant had entered into an agreement, subject to the court’s approval, whereby she was to receive $50 a week as alimony for the support of herself and son, and also to receive the furniture from her husband, except the silver set, which he wished to keep.

The decree was entered on June 5, 1935, which provided for the payment of the amount of alimony which had been agreed upon, and this court has a right to assume that the $50 per week alimony has been received by the plaintiff, for the reason that there is no complaint in her petition, nor does her testimony show that the amount agreed upon was not received by her during this time. By the acceptance of the benefits provided for in the decree the petitioner is estopped by her acts from the relief prayed for in her petition.

There is another point which it might be well to consider, and that is whether the plaintiff filed her petition, which is in the nature of a bill of review, within one year after the entry of the decree. This court has held in the case of Weinberg v. Larson, 275 Ill. App. 475, that unless a bill of review which seeks to impeach a decree is filed within one year after the original decree was entered, it comes too late.

The petitioner offers the rather unusual suggestion that she understood it was to be a trial divorce only, and in her testimony stated she did not know that there was condonation in the case until she was told about it on June 5, 1936, by her attorney. This would but lead us to believe she understood a divorce decree was being entered and that she was subject to its provisions.

We have considered the important questions in the matter, and the court, upon the questions of fact has refused to vacate the decree in this proceeding, and we are of the opinion the evidence sustains the order of the court. The finding is not against the manifest weight of the evidence, which would be necessary in order for this court to regard the finding sufficiently erroneous to reverse the order entered in the original proceeding, and the order entered by the court is therefore affirmed.

Order affirmed.

Denis E. Sullivan and Hall, JJ., concur.