text:
    New York Life Insurance Company, Plaintiff, v. Mary Roselene Schlieper, Appellant. Eugene Dean Schlieper et al., Appellees.
    Gen. No. 8,955.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    Elizabeth Mayo, of Pittsfield, for appellant.
    William and Barry Mumford, both of Pittsfield, for appellee Paul A. Schlieper.

      L. T. Graham, of Pittsfield, guardian ad litem for Eugene Dean Schlieper and Daniel Dale Schlieper, minors, appellees.
   Mr. Justice Allaben

delivered the opinion of the court.

On November 23, 1922, Daniel E. Schlieper purchased a policy of life insurance from the New York Life Insurance Company, of the face value of $1,000, ‘with Kathlene Schlieper designated as beneficiary. It was provided in the policy that the insured had the right at any time to change the beneficiary upon giving notice in accordance with the provisions of said policy. On July 19, 1926, the beneficiary was changed to Eugene Dean Schlieper and Daniel Dale Schlieper, his children, and on June 17, 1933, the insured again changed the beneficiary of said policy to Mary Roselene Schlieper, his then wife. Daniel E. Schlieper died August 21,1934, the insurance policy being at that time in full force and effect.

On March 25, 1931, at Hammond, Indiana, Daniel E. Schlieper was adjudicated to be an insane person, and committed to the State Hospital for Insane, at Logansport, Indiana. On July 6, 1931, in the county court of Pike county, Illinois, he was found to be insane by a jury, and Anna Schlieper was appointed conservator both of his person and his property. Anna Schlieper qualified as conservator, and continued to act until the death of her ward. Claim to the avails of the insurance policy was filed by Mary Roselene Schlieper and by Paul A. Schlieper as guardian on behalf of Eugene Dean Schlieper and Daniel Dale Schlieper, minors. February 7, 1935, the New York Life Insurance Company filed its interpleader complaint in the circuit court of Pike county, making all parties in interest parties thereto, and asking the direction of the court as to whom the money should be paid. L. T. Graham, an attorney, was appointed guardian ad litem for the minors. He filed answer as guardian ad litem, on behalf of the two minors, and Paul A. Sehlieper, guardian, also filed his answer on behalf of said minors. Mary Eoselene Sehlieper filed her answer. The court entered an interlocutory decree impounding the sum of $828.34, the amount found due by the court on the said insurance policy, with the clerk of the circuit court of Pike county, released the interpleading plaintiff from further liability and dismissed it out of the case.'

The amended answer of Mary Eoselene Sehlieper admitted the issuance of the policy, the change of beneficiary in 1926, and the change of beneficiary to herself in 1933, and alleged that at the time of the change naming her beneficiary the said Daniel E. Sehlieper was of sound mind and memory, and fully capable of knowing and understanding the business in which he was engaged, and the persons who were the natural objects of his bounty, and competent in every respect to transact the particular bit of business of changing the beneficiary in said insurance policy on that date, and that such change of beneficiary was and is a legal and binding change.

The amended answer of L. T. Graham, as guardian ad litem of the two minors, and of Paul A. Sehlieper, guardian of said minors, alleged the adjudication of Daniel A. Schlieper on March 25, 1931, to be an insane person and his committal to the State Hospital for the Insane at Logansport, Indiana, also alleged June 1, 1931, the finding by a jury in the county court of Pike county, Illinois, that Daniel E. Schlieper was insane, the appointment of Anna Sehlieper as conservator for him and his property; that she qualified, and continued to act until his death, and that by reason of said adjudication of insanity, Daniel E. Schlieper was from and after March 25, 1931, wholly incompetent to transact any business and disqualified and unable to execute and deliver the instrument purporting to change the beneficiary in said insurance policy, and praying that the avails thereof should be paid to Paul A. Schlieper, as guardian of the minors.

Mary Roselene Schlieper filed her motion to strike the amended answer filed by Paul A. Schlieper, guardian, and L. T. Graham, guardian ad litem, from the files because said answers did not allege that Daniel Schlieper was mentally incompetent to make the change of beneficiary to Mary Roselene Schlieper at the time same was made, and that said answer was wholly insufficient in law. Paul A. Schlieper, as guardian of said minors, and'L. T. Graham, as guardian ad litem of said minors, filed motions to strike the answer of Mary Roselene Schlieper for the reason that said answer did not deny the adjudications of insanity set forth in the answer of the guardians for their minors, or that at the time of the said purported change of beneficiary his property and person were under the care and control of a conservator duly appointed; also that before the said Mary Roselene Schlieper could establish her right to the proceeds of the funds in controversy she must establish the fact that the said Daniel Schlieper was legally competent to make such change of beneficiary and was not under an adjudication of insanity; further, that the answer showed that the attempted change of beneficiary was a contractual act and void under section 14, chapter 86, of the Revised Statutes of the State of Illinois, relative to lunatics, idiots, drunkards and spendthrifts.

After hearing the court struck the answer of the defendant, Mary Roselene Schlieper, and denied her motion to strike the answers of the guardian and guardian ad litem. Mary Roselene Schlieper elected to stand on" her answer, whereupon the court entered a decree finding that the attempted act on the part of Daniel E. Schlieper on June 17, 1933, to change said beneficiary was a contractual act, and was void and of no force or effect, for the reason that at said time said Daniel E. Schlieper was under an adjudication of insanity and under the care and control of a conservator and not legally competent to change the beneficiary in his insurance policy, and finding that the defendants Eugene Dean Schlieper and Daniel Dale Schlieper were entitled to the funds derived from the insurance policy, and further ordering that the costs of suit be taxed against Mary Roselene Schlieper. From this order and decree the defendant, Mary Roselene Schlieper, has prosecuted this appeal to this court.

The errors assigned for reversal are that the court erred in striking her answer; that the court erred in denying her motion to strike the answer of Paul A. Schlieper as guardian of the minors, and the answer of L. T. Graham, as guardian ad litem of said minors; that the court erred in entering a decree finding her answer insufficient in law; that the court erred in finding that the act of Daniel E. Schlieper on June 28, 1933, changing the beneficiary of the policy of insurance was a contractual act; that the court erred in finding that on June 28, 1933, Daniel E. Schlieper was not legally competent to change the beneficiary in a policy of insurance; that the court erred in awarding the amount due on the insurance policy to Eugene Dean Schlieper and Daniel Dale Schlieper; that the court erred in decreeing' that Paul A. Schlieper, guardian of the said minors, was entitled to the amount due on said policy for his wards, and ordering the clerk to pay to the above mentioned Paul A. Schlieper, as guardian, the amount due on said policy; that the court erred in assessing the costs of suit against Mary Roselene Schlieper.

The matter presented by this appeal is purely a question of pleading. Under the Practice Act a motion to strike serves the purpose of a special demurrer. All facts well pleaded are taken as admitted to be true. It is, therefore, admitted by the motion of Mary Roselene Schlieper that Daniel E. Schlieper was adjudged insane in March, 1931, and committed to the State Hospital for Insane at Logansport, Indiana, and that on the 6th day of July, 1931, in the county court of Pike county, Illinois, the said Daniel E. Schlieper was found to be insane by a jury, and that a conservator was appointed for him and his property who qualified and continued to act until the date of his death, and was his guardian on June 17, 1933, the date the change of beneficiary was made. However, such a motion admits no conclusions of law. By the same rule the motions by the two guardians of the minors to strike the answer of Mary Roselene Schlieper, admits all the facts well pleaded in her answer, and therefore, admit that at the time of the change of beneficiary on June 17, 1933, Daniel E. Schlieper was of sound mind and memory and fully capable of knowing and understanding the business in which he was engaged, and the persons who were the natural objects of his bounty, and competent in every respect to transact the particular business of changing* the beneficiary in said insurance policy. Of course, their motions to strike admit no conclusions of law.

Although there are numerous assignments of error, the sole question raised is whether, one who has been adjudicated an insane person and for whose person and property a conservator has been appointed, and is acting, can, if possessed of sufficient mental capacity to know and understand the business in which he is engaged, and the persons who are the natural objects of his bounty, and competent in every respect to transact the particular business of changing* the beneficiary of an insurance policy, do so, and have legal effect given to such change. It is urged by appellees in this court and found by the trial court that the act of Daniel E. Schlieper in changing the beneficiary in his said insurance policy on June 17,1933, was and constituted a contractual act on his part, and was void, and of no force and effect, because the said Daniel E. Schlieper was then under an adjudication of insanity based upon the finding of a jury and was at said time under the care and control of a conservator, and not legally competent to change the beneficiary in his insurance policy. This is based upon the following statute: Illinois State Bar Stats., 1935, chapter 86, section 14: “Contracts, when and as to whom void. Every note, bill, bond or other contract by an idiot, lunatic, distracted person or spendthrift, made after the finding of the jury, as provided in Section 1 of this Act, shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and his estate, ...” Section 12, chapter 85, contains the same provision except that it applies only to lunatics. It does not appear to this court that these sections of the statute are in any way applicable to the matter involved here. In the first place it does not appear to us that the changing of a beneficiary in an insurance policy constitutes a contractual act, but rather is analogous to the making of a testamentary disposition of one’s property. (Mutual Life Ins. Co. of New York v. Devine, 180 Ill. App. 422.) Changing the beneficiary calls for no new consideration, the premium remains the same, the cash value of the policy is not altered, nor is the loan value changed. When the contract was entered into the right by the insured from time to time to change the beneficiary was reserved. To us it seems that the changing of the beneficiary does not constitute a contractual act. The finding of insanity and the appointment of a conservator will not prohibit the party against whom the finding was made from making a will and it has been frequently so held in this State. (Belz v. Piepenbrink, 318 Ill. 528; In re Weedman’s Estate, 254 Ill. 504; Lewandowski v. Zuzak, 305 Ill. 612; Wetzel v. Firebaugh, 251 Ill. 190.)

However, we do not believe that it is necessary to decide this question, as to whether or not the changing of a beneficiary is a contractual act, because the provisions of the statute cited are that every . . . contract by an idiot, lunatic, distracted person or spendthrift made after the finding of the jury . . . shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and his estate.” It can readily be seen that the change of beneficiary did not affect Daniel E. Schlieper or his estate. As previously stated, the change did not require any consideration, increase the premium, affect the cash value, or the loan value, and inasmuch as in any event the proceeds of this policy at his death would go to beneficiaries under the policy, and not to the estate, it in nowise affects the estate. Therefore, the act of changing the beneficiary in a life insurance policy, if a contractual act, does not come within the prohibitions of the statute cited.

For the reasons heretofore set out the trial court erroneously struck the answer of Mary Eoselene Schlieper and erroneously denied her motion to strike the answers' of the two guardians. Therefore, this cause is reversed and remanded with directions to the trial court (1) to set aside the decree entered herein, (2) to strike the answers of the two guardians, (3) to vacate the order striking the answer of Mary Eoselene Schlieper, and for such further action as is not inconsistent with this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    Martha L. Bender, Administratrix of the Estate of David Bender, Deceased, Appellee, v. The Alton Railroad Company, Appellant.
    Gen. No. 8,969.
    Opinion filed February 29, 1936.
    Rehearing denied April 7, 1936.
    W. K. Bracken and Bracken, Radliff, Livingston & Murphy, all of Bloomington, for appellant; Silas H. Strawn, of Chicago, general solicitor.
    Ray H. Imig and Stone & Wright, of Bloomington, for appellee.
   Per curiam.

This is an appeal by appellant from a judgment of the circuit court of McLean county, in favor of appellee. The case was submitted for decision at the January term, 1936, of this court. Since its submission appellee has called the attention of the justices of this court to the fact that the brief of appellant does not contain the statement of errors relied upon for reversal of said judgment.

Appellant thereupon obtained leave to file its motion for leave to file certain assignments of errors, at the conclusion of the statement in its brief, which were presented with said motion, to the granting of which motion appellee objected.

The statement of errors and cross errors relied upon for reversal, required to be made in the concluding subdivision of the statement of the case by Buie 39 of the Supreme Court as amended at the June term, 1935, of said court and Buie 9 of the Appellate Court as amended on October 1, 1935, take the place of the assignment of errors required prior to the adoption of the Civil Practice Act.

While it would have been proper and permissible on motion to have granted appellant leave to amend its brief by including the statement of errors relied upon for a reversal of said judgment during term time and before the case was taken for consideration, yet the case having been submitted for decision we are without authority to grant such motion. McCormick v. Chicago & State Line Ry. Co., 219 Ill. 593.

Prior to the adoption of the Civil Practice Act it was necessary to attach the assignment of errors to the record and this was jurisdictional. Assignments of error were never required by any statutory provision. It was not a mere matter of form to be considered waived, if not objected to, but was one of substance. Farmers State Bank of Belvidere v. Meyers, 282 Ill. App. 549. It performs the same function in the court of review as the declaration in the trial court.

Prior to 1872 formal joinder in error was required • and, if error was not joined after notice given, the judgment would be reversed. Joinder in error was not required by the Practice Act of 1907. Cahill’s St. 1933, ch. 110, sec. 108. On errors being* assigned, if the opposite party did not plead in proper time, the case was taken as if error had been joined.

After the enactment of the Civil Practice Act and the adoption of Buies of Practice and Procedure by our Supreme Court at its December term, 1933, much confusion seemed to exist as to the necessity of assignment of errors, and as to how the same should be made.

Buie 39 of the Supreme Court and Buie 9 of this court, as amended, make it clear that it is the duty of appellant in the concluding subdivision of the statement of the case in his brief to make a brief statement of the errors or cross errors relied upon for reversal or of the cross errors submitted by an appellee not prosecuting a cross appeal, and the duty of appellee in his statement in his brief to make a short and clear statement of the propositions by which he seeks to meet the alleged errors and to sustain the judgment or decree, or by which such errors are obviated. Our Supreme Court at the same time amended its Buie 36 (2) by adding the following provision:

“No assignment of errors or cross-errors shall be necessary, except the statement in the brief, at the conclusion of the statement of the case, of errors relied upon for reversal as required by Buie 39.”

An examination of Buies 36 and 39 of the Supreme Court and of Bules 1 and 9 of this court, before and after amendment, will make it clear just what is required by way of assignment of errors and just where in the brief of appellant such statement of errors shall be written. Buie 39 not only requires appellant to make such statement of errors in his brief but also requires appellee to join in error by making a short and clear statement in his brief of the propositions by which he seeks to meet the alleged errors.

It will, therefore, be seen that the practice now is the same as it was prior to the enactment of the act in 1872, which provided that formal joinder in error was no longer necessary.

The purpose of the rules adopted by the Supreme and Appellate Courts is to facilitate the orderly disposition of the business of the courts and to expedite the prompt administration of justice. Village of Barrington v. Lageschulte, 323 Ill. 343.

Rules when established have the force of law and are obligatory upon the court itself, as well as the parties to the cause coming before it. Lancaster v. Waukegan & S. W. Ry. Co., 132 Ill. 492. Courts of review will not vary the application or interpretation of their rules to suit the contingencies of a particular case. Under the old practice assignments of error were required to be written upon or attached to the record; under amended Rule 39 of the Supreme Court and amended Rule 9 of the Appellate Court they must be the concluding subdivision of the statement of the case.

Requiring the statement of errors to be so placed is not an arbitrary or unreasonable rule. That is the logical place in the brief to make such statement.

If Rule 39 of the Supreme Court or Rule 9 of this court as amended is followed in the preparation of a brief by an appellant it will be seen that the court of review will have a knowledge of the nature of the action, the pleadings, the facts, the decision of the trial court, and, lastly, the errors relied upon for reversal.

The statement in the brief of appellee will disclose the propositions by which he seeks to meet the alleged errors and to sustain the judgment or by which such errors are obviated, such statement being an essential part of the brief of appellee.

There being no statement of errors or cross errors relied upon for a reversal of the judgment in the concluding subdivision of the statement of the case in the brief of appellant we are without authority to review the case and the appeal is therefore dismissed at the costs of appellant.

Appeal dismissed.


author: Mr. Presiding Justice Huffman

text:
    Lydia Tatro and David Tatro, Sr., Appellees, v. Modern Woodmen of America, Appellant.
    Gen. No. 8,967.
    Opinion filed January 17, 1936.
    Rehearing denied April 6, 1936.

      George G. Perrin and George H. McDonald, both of Rock Island, and Eva L. Minor, of Kankakee, for appellant.
    Vernon G. Butz and Miller & Shapiro, all of Kankakee, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

David Tatro, deceased, was a member of appellant society, and appellees, his parents, were the beneficiaries named in the benefit certificate of life insurance issued by the society to the said deceased. This was a suit brought by appellees as such beneficiaries, to recover under the policy. The cause was heard by the court without a jury. The court found the issues for the appellees and entered judgment" against appellant society for the sum of $2,160, consisting of $2,000 under the contract, with interest thereon in the sum of $160. The society prosecutes this appeal from the judgment as above entered.

The deceased became a member of appellant society in November, 1926. He defaulted in the assessments levied for the months of April and May, 1933. He was suspended therefor from the society on May 1, 1933. On June 28, 1933, he suffered a collapse from heat exhaustion. A doctor was called for him and he was found to be in a critical condition. On the following day, June 29, 1933, the doctor visited him during the morning. A consultation was held by two doctors- at about 3:00 o ’clock that afternoon. It appears that the deceased at this time was in a very grave condition, suffering from the heat prostration of the day previous. His condition continued to grow worse and he died within a few hours after the consultation had by the doctors on the above afternoon. On the said afternoon of June 29, at about 3:00 o’clock, Lydia Tatro, mother of deceased and one of the beneficiaries in the policy, called at the office of the secretary of the local camp of appellant society, in which the deceased had held his membership, and made payment of the April, May and June assessments of that year. The secretary inquired of appellee as to what the deceased was doing and was advised by her that he was working on a farm.

Appellant filed the plea of general issue and three special pleas. The first special plea was founded upon the contract of insurance between the deceased and appellant society, and incorporated therein certain sections of the by-laws, which were a part of the contract. Section 12 of the by-laws is as follows: “12. It is agreed that if the member holding said Benefit certificate shall be in suspension less than ninety days for nonpayment of assessments, dues or fines, and shall desire to reinstate by tendering and paying delinquent assessments, dues or fines, said member by such tender warrants that he is in sound health at the time of making such tender, and that if in fact said member is not in sound health at such time, the receiving of such assessments, dues or fines, shall not have the effect of reinstating such member, and said Benefit certificate shall remain null and void; nor shall the receipt or retention of any assessments, dues or fines, from such member after any such suspension, have the effect of reinstating him or constitute a waiver of any of the By-laws of the Society.” Section 64 of the by-laws is as follows: “Sec. 64. Reinstatement Within Three Months. — Any member suspended for the nonpayment of an assessment, fines, or dues, if in sound health, and not engaged in any of the prohibited occupations mentioned in Section 16 hereof, may, within three months from the date of suspension, be reinstated by the payment of the current assessment and dues, and all fines, dues, and assessments which would have to be paid to.remain in good standing. Whenever assessments or dues are paid by or for a suspended member, for the purpose of reinstatement, said member shall, by such payment, be held to warrant that the member is in sound health and not engaged in any prohibited occupation, and to contract that such assessments or dues, when so paid after suspension for nonpayment, shall be received and retained without waiving any of the provisions of this section, until such time as the Head Clerk of the Board of Directors shall have knowledge that the member was not in sound health when attempting to reinstate, or was engaged in a prohibited occupation; provided, however, that the receipt and the retention of such payment in case the suspended member is not in sound health, or is engaged in any prohibited occupation, shall not reinstate said member, or entitle such member or any beneficiary or beneficiaries to any rights under any Benefit certificate or rider; and provided further, that such payment made for the purpose of reinstatement, either before or after death, shall not constitute a waiver of any provision of these By-laws.”

Appellant’s second and third special pleas were similar to the first in that they set up the by-laws with reference to the failure to pay assessments; also suspensions, and reinstatement as provided in said section 64. It will be observed in both of the foregoing sections of the by-laws, that payment of arrearages only is not sufficient to constitute or operate as a reinstatement of the assessed, but that in addition to such payment of delinquent assessments, the insured must at such time be in sound health. It also appears from the foregoing sections that the tender and payment of such assessments shall be held to warrant that the member is in sound health, and not engaged in any occupation prohibited by the terms of the contract. One of the early cases in this State dealing with this question is Gross-Loge v. Laercher, 41 Ill. App. 462, wherein it was held that a member of a mutual benefit association who had been suspended for nonpayment of dues was not entitled to be restored to membership by the payment of delinquent dues if at such time he was not in good health. Receipt of a member’s dues, in ignorance of his illness, does not constitute a waiver of the requirement of good health at the time of reinstatement. Garbutt v. Citizens’ Life & Endowment Ass’n, 84 Iowa 293, 51 N. W. 148. A warrant at the time of reinstatement that the member is in good health, when in fact he is not, will vitiate the reinstatement. Bacon, Life and Accident Insurance, Vol 2 (4th ed.) p. 1136, and cases cited. A concealment of the illness of the member by a beneficiary when applying to have him reinstated amounts to fraud and vitiates the reinstatement; Grand Lodge A. O. U. W. v. Cressey, 47 Ill. App. 616.

Appellees claim a waiver of forfeiture on the part of appellant, based upon prior course of dealing with respect to accepting delinquent assessments which had been levied against the deceased. Contracts of insurance are essentially of good faith, and the fact that a member might have been reinstated upon the payment of delinquent assessments upon previous occasions should not give rise to the right to work fraud upon the insurer upon a subsequent attempted reinstatement at a time when the insured is not in good health, but to the contrary, is in a dying condition. With respect to appellees’ contention of waiver of forfeiture, it has consistently been held that the burden of proving such a waiver is upon the one seeking to avail himself thereof. Old Colony Life Ins. Co. v. Hickman, 315 Ill. 304. A waiver is the intentional relinquishment of a known right, and in all cases there must be both the knowledge of the existence of the right and the intent to relinquish it. Ferrero v. Na tional Council Knights & Ladies of Security, 309 Ill. 476, 481. To the same effect are Trafton v. National Council Knights & Ladies of Security, 198 Ill. App. 347; Busta v. Court of Honor, 172 Ill. App. 71.

The parties being free to agree upon whatever terms and conditions they choose, and having so agreed by their contract, the courts have no other alternative than to give effect to the contract as written. The reinstatement of the deceased was conditioned upon his being in sound health at the time appellee paid the delinquent assessments. The facts show that the insured at this time was not in sound health. Under such circumstances, the payment by appellee, being by the by-laws made to constitute a warranty that the insured was in sound health, did not operate to reinstate the decedent. We are of the opinion that the facts in the case do not show a waiver of such forfeiture upon the part of appellant. Under such circumstances no liability exists upon the part of the society. We therefore find, as an ultimate fact to be incorporated in the judgment, that the evidence in this case does not establish a reinstatement of the deceased member, David Tatro, in appellant society ; that he was suspended from membership therein at the time of his death; and that appellees are not entitled to recover against appellant on the policy contract.

The judgment herein is reversed.

Judgment reversed.


author: Mr. Justice Wolfe

text:
    Brittingham and Hixon Lumber Company, Plaintiff in Error, v. Board of Education of School District No. 71, Carroll County, et al., Defendants in Error.
    Gen. No. 8,925.
    Opinion filed January 17, 1936.
    Rehearing denied April 6, 1936.
    J. L. Brearton, of Savanna, Charles H. Green, of Freeport, and Hadley, Weaver & Woodward, of Wheaton, for plaintiff in error; J. L. Brearton, Charles H. Green and Charles W. Hadley, of counsel.
    Sims & Stransky, of Chicago, for certain defendant in error; Franklin J. Stransky and Wellington G. Brown, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Brittingham & Hixon Lumber Company filed a bill of complaint in the circuit court of Carroll county on June 4, 1930, making the defendants parties thereto. The bill alleges that the said lumber company on October 10, 1928, made a contract with one Harry Branch to furnish lumber and building supplies to be used in the construction of the schoolhouse to be built in the city of Savanna, Illinois. The bill further alleges that the materials were furnished as and when needed; that they were to be paid for at the current market price for such materials at the date the same were furnished to said Harry Branch; that the account was to bear 6 per cent interest on all monthly balances; that immediately after entering into the contract the complainant began and did furnish said Harry Branch lumber and building supplies and continued to furnish the same to said Harry Branch for the purpose of the erection of said schoolhouse up to and including the 6th day of January, 1930. Attached to the bill of complaint was a statement of the account between Harry Branch and the complainant in which they alleged there was due the complainant, after allowing all credits and set-offs, the sum of $4,574.69/

The bill further alleges that on the 7th day of December A. D. 1929, the complainant delivered to the secretaiy of the board of education a notice which sets forth that the Brittingham & Hixon Lumber Company had an account against Harry Branch, who was erecting said school building for the board of education under a contract between him and the school district, and that there was due $13,930.13 from said Harry Branch to said complainant; that said statement was being filed for the purpose of filing a lien against all funds which the board of education then had in its possession, unexpended for use in paying the cost of the construction of the school building.

The bill further alleges that the said board of education did enter into a contract with Harry Branch to do the general, construction work incident to the erection of the said school building and that he furnished to said board of education a bond to which the Detroit Fidelity and Surety Company is surety in the penal sum of $115,697.50.

The plaintiff further alleges that on the date of the filing of such written, notice of its account and claim for a lien, there were ample funds due Harry Branch to pay the said account in full; that upon the filing of said notice, Harry Branch admitted that said account was true and correct; that after the filing of this account and claim for a lien the surety company did advise the board of education concerning the disposing of the money it had in its possession for the payment of the creditors of Branch; that the surety company had in its possession a list of the creditors of Branch and the amount due and owing to each, and notwithstanding the fact that this complainant had filed a claim for lien under the statute, the surety company did advise the board of education as to how to distribute the said money among the several creditors of Branch and that the board of education notwithstanding the claim for lien did not pay complainant in full but did pay complainant and all the other creditors of Branch 71 per cent of the account, exclusive of interest, but refused to pay the balance due to the complainant; that the board of education had under its control and in its possession sufficient funds to pay the claim of the complainant.

The prayer of the petition is that a full and complete accounting of all money which the board of education had in its possession on the 7th day of December A. D. 1929, he had and that said board of education be required to disclose and set forth definitely the name or names of any person who may have filed with it a claim for lien, against the funds in its hands to be used for the payment for the construction of said building and the amount which was paid to Harry Branch under his contract; and that the court will direct and order either the said board of education or the surety company under its bond aforesaid to pay to the complainant all money rightfully due to it, and for general relief.

' The defendant Detroit Fidelity & Surety Company filed its answer and admitted furnishing a bond for Harry Branch in the penal sum of $115,697.50. It admits that the surety company did offer the board of education a list of the creditors of Harry Branch and advised the board of education as to how to distribute the said money among his several creditors; that the said board of education, acting upon said advice, made distribution of the sum of $15,658.50 among said creditors of Harry Branch but did not pay the complainant’s account in full; that the complainants accepted said pro rata distribution of its claim and is estopped from making any claim against this defendant or the board of education for the payment of the remainder, of its claim. The answer denies that the court has jurisdiction in this proceeding to enter a judgment in personam against this defendant.

The board of education filed its answer. It neither admitted nor denied many of the allegations in the bill of complaint, bat called for strict proof of the same. The answer does admit that the board of education entered into a contract with Harry Branch for the erection of a school building and that Harry Branch furnished a bond for the faithful performance of said work signed by .the defendant, the Detroit Fidelity and Surety Company.

It further admits that the Detroit Fidelity and Surety Company did advise this defendant concerning the disposition of the money it had in its possession for the payment of creditors of the said Harry Branch; that the surety company did then have in its possession a list of the creditors of the said Branch and the amount due and owing to each creditor and presented the same to this defendant, and advised it how to dispose of the money among the several creditors ; that this defendant did not pay the complainant in full but paid it and all other creditors 71 per cent of its accounts, exclusive of the alleged interest due on monthly balances; that before the making of such pro rata distribution this defendant received notice in writing from or on behalf of the following named persons, and that there was due them from Harry Branch for materials employed in the construction of said school building the spective names: sum set opposite their re-

Thos. Moulding, 70% of $ 1,041.00 $ 728.70

Richards Kelley Mfg. Co., ti it 450.00 315.00

A. J. Thompson Stone Co., 71% “ 1,504.13 1,067.93

Oley J. Dean It tt 400.00 284.00

Glenfire Steel Co., it t { 327.05 232.20

North Shore Terrazzo & Tile Co.. it it 1 1,060.00 752.60

Metz Mfg. Co., tt tt 699.00 496.29

Lathrop Hodge Gypsum Co., it tt 670.00 475.00

Industrial Roofing Co., a a 1,148.00 815.08

Hooker Glass & Paint Co., 11 a 813.00 577.23

Brittingham & Hixon Lumber it tt 13,380.63 9,500.24

Beckley Card Co., it tt 159.18 113.01

Glen Larghran Hdw. Co., tt a 69.68 49.47

Wm. Myers tt tt 34.65 24.00

N. W. Ill., Utility Co., tt tt 38.62 27.41

Irwin Kennedy tt tt 12.00 8.52

H. & S. Grocery 11 11 2.25 2.25

E. Johns tt tt 35.00 24.85

Savanna Const. Co., tt a 164.83 117.03

Ivey & Son tt tt §9.00 41.89

Tripp Elec. Co., 11 11 6.06 4.50

That on the 7th day of December, 1929, it had in its possession the sum of $16,167.09, balance due Branch under Ms contract; that it retained $508.59 to complete the bmlding, and distributed $15,658.50 among the creditors above named, giving each 71 per cent of his or its claim; that Eoy Howe was, at the time of the pro rata distribution, manager of the business of complainant and also a member of the board of education and that the complainant by reason of such payment is estopped to make claim against this defendant or the surety company for payment of the remainder of its claim. It denies that the court has jurisdiction to enter a judgment in personam against this defendant.

The case was referred to the master in chancery on December 30, 1930, to take proof and report to the court his conclusions of law and fact. On February 6, 1932, the court entered an order granting leave to the complainant to file an amended bill of complaint. The amendment was filed making some slight changes in the body of the bill. The prayer for relief was amended and asked “that the complainant have a lien on the moneys or bonds or warrants or other evidences of indebtedness due on the 7th day of December 1929, or thereafter to become due to Harry Branch from the defendant, Board of Education, under its contract with Branch, as is in such case made and provided by statute, and that the defendant, Board of Education, be compelled to demand of the Surety Company that the Surety Company pay to the said board a sufficient sum of money to pay the claim of the complainant in full, with interest; and that the Surety Company be compelled to comply with such demand within a day certain to be fixed by the Court in this decree, and that thereafter the balance due under the demand of the complainant against Branch as of December 7, 1929, be paid in full.”

The case was again referred to the master in chancery who heard evidence and reported his findings of fact and conclusions of law. He recommended to the court that there was no - equity in the bill of complaint and the same should be dismissed. Objections were filed to the master’s' report, which were overruled. The objections were allowed to stand as exceptions in the circuit court and a hearing was had on the master’s report and the exceptions thereto and the same were overruled. Judgment was entered in favor of the defendants and the bill dismissed for want of equity.

The case is brought to this court by the original complainants for review. It is contended by the defendants that the complainant is estopped to assert it has a lien on the money in the hands of the board of education for the payment of any bills that might be due from the board of education to Harry Branch because the lumber company had consented to an equal distribution of the funds in the hands of the board of education, to the creditors of Harry Branch as set forth in the defendant’s answer; and the claim for lien, if any, had been waived by the complainant by the acceptance of its pro rata share of the funds in the hands of the board of education at the time the complainants filed their purported claim for a mechanic’s lien.

The master found as follows: “(11) — That from the aforesaid moneys unpaid to the Defendant, Harry Branch, from said Defendant, Board of Education, said Board of Education deducted the sum of Five Hundred ($500.00) Dollars, to cover the expense of uncompleted items of the contract and equally prorated the sum of Fifteen Thousand Six Hundred Fifty-Eight 50/100 ($15,658.50) Dollars, among the Complainant and the remaining unpaid creditors as aforesaid of the Harry Branch, paying said Complainant on its claim the sum of Nine Thousand Five Hundred 24/100 ($9,500.24) Dollars.

“(19) — That no moneys, bonds or warrants belonging to said Harry Branch remain in the custody of Defendant, Board of Education.

“(20) — That no person to whom the moneys upon which the lien of Complainant may have attached has been paid, has been made a party to this proceeding.

“(21) — That at or before the distribution mentioned in Finding No. 11, one it. E. Morris, representing the Defendant, Detroit Fidelity and Surety Company, a corporation, stated to Roy Howe, manager, at Savanna, Illinois, for the Complainant, that all claims ivould be paid in full, and requested said Roy Howe, as such Manager, to consent to the distribution of the moneys in the hands of the Defendant, School Board, and by the application thereof to the payment in full of the smaller claims and to aAvait for balance of claim of Complainant until final settlement of contract.

“(22) — That said Roy Howe, as such Manager, refused to consent to the payment in full of said smaller claims and insisted upon a pro rata distribution and payment among all claimants.

“(23) — That said pro rata distribution mentioned in Finding #11 was made under the direction of said R. E. Morris, representing said Defendant, Detroit Fidelity and Surety Company, with the full knowledge and approval of said Roy Howe, as such Manager, and pursuant to the demand made by him.

“(25) — That said Roy Howe in consenting to such distribution did waive all claim for lien against the specific moneys, warrants or bonds due' the contractor, and the Complainant is now estopped from asserting such lien.”

It is seriously insisted by the complainant that the finding of the master is contrary to the evidence in the case. From our examination of the abstract and the record, we are of the opinion that the master’s conclusions of the facts are correct as set forth in the above findings, and that Roy Howe, who was manager of the complainant company, and also a member ’ of the board of education, did consent to the distribution of the funds as set forth in the master’s findings and confirmed by the chancellor.

In the case of Heidenbluth v. Rudolph, 152 Ill. 316, the court said, “A contractor in order to maintain his mechanic’s lien for work done and materials furnished must act in good faith towards all other persons interested in the property involved, and an act on his part which would make it unjust and inequitable to enforce his lien may operate as an estoppel to its enforcement in a court of equity.”

In the case of Springfield Marine Bank v. Marbold, 264 Ill. App. 446, the question of estoppel was being-discussed by the Appellate Court, and the following-language was used: “Estoppel may arise from silence as well as from words. (Oliver v. Ross, 289 Ill. 624; Lloyd v. Lee, 45 Ill. 277; Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567.) One who has actively cooperated with others in a particular manner, will not thereafter be heard to assert an inconsistent right. (Oliver v. Oliver, 179 Ill. 9.) A creditor who has full knowledge of the making of an assignment for the benefit of all creditors and acquiesces therein, is bound by the assignment and cannot attack it.”

It is our opinion that the complainant by its managing officer Eoy Howe agreed with the board of education and the other creditors of Harry Branch to accept its pro rata share of the money which the board of education had on hand which was due to Harry Branch,' the contractor, and by such act and acceptance it is estopped from claiming a lien against either of the defendants.

We have not decided the other assignments of error and cross error, as we deem it unnecessary in this case.

The court did not err in dismissing the bill for want of equity and the decree should be, and is hereby affirmed.

Affirmed.


author: Mr. Justice Dove

text:
    In re Estate of John Kustes, Deceased. Gertrude Kustes, Administratrix of the Estate of John Kustes, Deceased, Appellant, v. Hanna Kustes and Mary Kustes, Appellees.
    Gen. No. 8,978.
    Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    Sims & Stransky, of Chicago, and A. M. Blodgett, of Fulton, for appellant; Franklin J. Stransky and A. M. Blodgett, of counsel.
    McCalmont, Ramsay & Bull and J. A. Riordon, all of Morrison, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

Appellees, Hanna Kustes and Mary Kustes, filed a joint claim amounting to $11,906.44 in the county court of Whiteside county against the estate of John Kustes, deceased. Hanna Kustes filed a separate claim in said court against the same estate in the amount of $101.04. Mary Kustes filed three separate claims, one in the amount of $860.18, another in the amount of $574.52, and the third in the amount of $561.95. These claims were all set down for hearing on the same day and a single order was entered by the county court allowing all of said claims in full.

On the same day Gertrude Kustes, administratrix of the estate of John Kustes, deceased, excepted to the portion of the order allowing the joint claim of Hanna Kustes and Mary Kustes in the sum of $11,906.94 and also to that portion of the order allowing the claim of Mary Kustes in the sum of $860.18. An appeal bond in the amount of $26,000 was filed and approved by the court within 20 days and a transcript of the proceedings in the county court was duly filed in the circuit court.

Subsequently in said circuit court the said Hanna Kustes and Mary Kustes entered a special and limited appearance for the sole and only purpose of objecting to the jurisdiction of the circuit court and moved the court to dismiss the appeal. Likewise Mary Kustes entered her special and limited appearance in said circuit court and filed a similar motion. Upon a hearing, these several motions were sustained and an order was entered on May 8, 1935, dismissing the appeal. On the following day, Gertrude Kustes, administratrix of the estate of John Kustes, deceased, filed in said circuit court her motion for leave to file a new appeal bond in the matter of the joint claim of Hanna and Mary Kustes and a like motion for leave to file a new appeal bond in the matter of the individual claim of Mary Kustes and on May 13, 1935, filed her motion for severance of these two claims. These motions were heard by the court and on May 24, 1935, denied. Thereafter the administratrix, on May 28, 1935, filed a motion for an order for leave to file a good and sufficient bond covering the joint claim of Hanna and Mary Kustes and moved the court to proceed with the trial of said joint claim in the same manner as though said claim of Mary Kustes had not been included in the appeal. Upon a hearing this motion was denied on May 28, 1935. The administratrix also entered her motion to set aside and vacate the order of May 24, 1935, and to enter an order dismissing the individual claim ,of Mary Kustes against the estate of John Kustes, being the claim theretofore allowed in the probate court for $860.18. This motion, on May 28, 1935, was also denied by the circuit court and on June 1, 1935, notice of appeal was filed, which stated that the administratrix appealed from the several orders of the circuit court entered on May 8, 1935, May 24, 1935, and May 28, 1935, and the record is in this court for review.

Appellant, the administratrix, contends that inasmuch as the five separate claims were heard at the same time in the county court by agreement of the parties and that inasmuch as a single order was entered by the county court allowing them, and that inasmuch as a single appeal bond was all that was required by the county court which approved said bond, that in effect said claims were treated by the county court as having been consolidated and therefore the court erred in dismissing her appeal. It is further urged that the claimants, appellees here, stood by in the county court, remained silent when the single order was approved allowing each of the several claims and made no objection in the county court to the appeal bond that was presented, nor did they interpose any objection to its approval and therefore they were estopped from urging in the circuit court that the appeal bond was insufficient. In support of this contention, appellees cite and rely upon Milligan v. Miller, 253 Ill. 511, Oliver v. Ross, 289 Ill. 624, and Bondy v. Samuels, 333 Ill. 535. We have read these cases which announce the general rule that estoppel may arise from silence, and from refraining from do.ing something, as well as by conduct and by words where there is a duty to act or speak and the party on whom such duty rests has an opportunity to act and speak and knowing the circumstances keeps silent and does nothing, but here appellant was represented by counsel as were also appellees, and it was appellant’s duty to perfect her appeal as provided by law, and in our opinion the doctrine of estoppel, as announced in the foregoing cases, is not applicable to the ■ facts as shown by this record, nor does the record bear out appellant’s contention that these claims were consolidated in the county court.

Under the provisions of the Administration Act, Ill. State Bar Stats. 1935, ch. 3, in all cases of the allowance of claims by the county court, either party may take an appeal from the decision rendered to the circuit court in the same manner as appeals are taken from justices of the peace to the circuit court. The Justices Act provides that an appeal shall be perfected ,bv filing a bond within 20 days in twice the amount of the judgment and by paying the requisite filing fee. Ill. State Bar Stats. 1935, ch. 79, ¶ 116. The record in the instant case discloses that on December 24, 1934, one order was entered allowing the claim of Hanna Kustes in the sum of $101.04, also allowing the claim of Hanna Kustes and Mary Kustes in. the sum of $11,906.94, also allowing the claim of Mary Kustes in the sum of $574.52, also allowing the claim of Mary Kustes in the sum of $860.18, also allowing the claim of Mary Kustes in the sum of $561.95. The same order discloses that the administratrix excepted to the allowance of the claim of Hanna. Kustes and Mary Kustes in the said sum of $11,906.94 and to the allowance of the claim of Mary Kustes in the said sum of $860.18, and prayed an appeal to the April term of the circuit court of Whiteside county, which was allowed upon the administratrix filing a bond in the penal sum of -$26,000 within 20 days and with sureties to be approved by the court. On January 7, 1935, such a bond was filed and was approved by the county court. This bond was executed by the administratrix as principal and by George A. Smith, C. Burton Hollinshead and Gertrude Kustes as sureties, and named Hanna Kustes and Mary Kustes as obligees, and recited that on December 24,1934, Hanna Kustes and Mary Kustes recovered a judgment against the estate of John Kustes, deceased, for $11,906.94, and that on the same day Mary Kustes recovered a judgment against said estate for the sum of $860.18, from which said judgments the administratrix had prayed for and obtained an appeal to the circuit court of Whiteside county.

It is conceded by counsel for appellant that each of the five claims filed in the county court against the estate of John Kustes, deceased, was independent of the other claims and constituted a separate and distinct cause of action. The bond which appellant filed in the county court was in the sum fixed by the county court. That sum was more than twice the aggregate amount of the two claims which appellant desired to have passed upon by the circuit court. This bond was executed by sureties and contained conditions which met with the approval of the county court and that court approved the bond within the time provided by law. The object and purpose of this appeal bond was to protect those in whose favor a judgment had been rendered in the county court. In this instance those parties were Hanna Kustes and Mary Kustes jointly and Mary Kustes individually. The bond named Hanna Kustes and Mary Kustes as obligees. It'is apparent from this record that appellant sought to perfect an appeal to the circuit court from the order of the county court allowing the joint claim of Hanna and Mary "Kustes in the sum of $11,906.04 and the individual claim of Mary Kustes in the sum of $860.18, and in our opinion the execution of this bond was sufficient to confer jurisdiction on the circuit court so far as the joint claim of Hanna Kustes and Mary Kustes was concerned, and a reading of the bond inclines us to the opinion that it was an effort made in good faith by the administratrix to perfect an appeal from the county court of the judgment of the county court allowing not only the joint claim of Hanna and Mary Kustes, but also the individual claim of Mary Kustes in the sum of $860.18.

In Schofield v. Thomas, 231 Ill. 114, it appeared that upon the petition of John Thomas Schofield the probate court of Cook county had, on September 21, 1903, admitted the will of one Jane Ottman to probate. It further appeared that on February 15, 1905, the same court vacated its order of September 21, 1903, upon the ground that it was obtained by fraud. In 1905, Aaron Thomas, an heir at "law of said Jane Ottman, filed his petition in the probate court of Cook county reciting the foregoing, and while he denied the validity of the will, he asked by his petition that the court determine whether the instrument was or was not the last will and testament of Jane Ottman. Schofield was made a party, and upon a hearing the probate court entered an order denying the probate of the proposed will. From that order an appeal was taken by Schofield to the circuit court and a bond was executed payable to the People of the State of Illinois. In the circuit court a motion was entered by Thomas to dismiss the appeal for want of jurisdiction. This motion was denied and upon a hearing the circuit court entered an order finding that the probate court was without jurisdiction to entertain the petition resulting in the order of February 15, 1905, which set aside the probate of the will and that such order of February 15, 1905, was void. The circuit court also held that the probate court was also without jurisdiction to entertain the petition of Thomas to determine the validity of the will and dismissed the petition. From that judgment an appeal to the Supreme Court was prosecuted. In its opinion the Supreme Court said that the appeal bond executed by Schofield in removing the case from the probate to the circuit court should have been made payable to Thomas and not to the People of the State of Illinois, but inasmuch as an attempt was made to file a bond, the proper course would have been for the circuit court to have ruled Schofield to file a new bond payable to Thomas and only to dismiss the appeal upon a failure to do so. The Supreme Court reversed the order of the circuit court dismissing the petition and remanded the cause to the circuit court with leave to Schofield to file a new bond payable to Thomas.

In the circuit court, the only reason assigned by appellees in their motions to dismiss the appeal was that the circuit court did not have jurisdiction to hear the appeal. There was no suggestion in their written motions that the appeal bond was insufficient. We are clearly of the opinion that the appeal bond was sufficient to give the court jurisdiction of the joint claim of Hanna Kustes and Mary Kustes, and that said joint claim of these appellees was properly before the circuit court for a hearing ele novo as provided by the statute. The defect in the bond was not such as could not have been remedied and had appellant asked leave to file an appropriate bond or bonds prior to the time the appeal was dismissed by the circuit court on May 8, 1935, no doubt the court would have granted such leave, but no such request was made. The recitals in the appeal bond, so far as the individual claim of Mary Kustes is concerned, may be treated as surplus-age, and while the bond was informal, it is not so defective as to preclude the circuit court from acquiring jurisdiction of the appeal, and therefore the trial court erred on May 8, 1935 in dismissing the appeal.

After the final order was made on May 8, 1935, appellant might thereafter have moved the trial court to vacate that order of dismissal, but she did not do so. In none of her subsequent motions did she request that this be done, and until that was done, the court properly declined to entertain the several motions made by her.

The judgment of the circuit court dismissing the appeal is reversed and this cause is remanded to that court with leave to appellant to file, if she shall so elect, a new appeal bond so far as the joint claim of Hanna Kustes and Mary Kustes for $11,906.94 is concerned and also with leave to file a new appeal bond if she shall so elect so far as the individual claim of Mary Kustes for $860.18 is concerned. Said bond or bonds to be approved by the court and to be filed within 10 days after the reinstatement of this case in the circuit court, and with directions to that court in case such new bond or bonds are filed to proceed to a trial de novo.

Reversed and r.emanded with, directions.


text:
    Sycamore Preserve Works, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. No. 8,961.

      Opinion filed February 10, 1936.
    Rehearing denied and opinion modified April 7, 1936.
    Certificate of Importance and Appeal granted April 7, 1936.
    Lowell B. Smith, of Sycamore, and Nelson J. Wilcox and Nelson Trottman, both of Chicago, for appellant.
    Zane, Morse, Zimmerman & Norman, of Chicago, and Latham Castle, of Sycamore, for appellee; Edward A. Zimmerman and William R. Engelhardt, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The plaintiff, the Sycamore Preserve Works filed suit in the circuit court of De Kalb county against the Chicago and North Western Railroad Company. The declaration consists of five counts, which are as follows;

First Count.

“For that whereas on the 30th day of November, 1932, the said plaintiff was and thence hitherto has been and now is a corporation duly incorporated under the laws of the State of Illinois and the said defendant on said day and theretofore and thereafter was and now is a railroad corporation owning, operating and controlling a certain line of railway and the right-of-way therefor situated in the County aforesaid and extending from the main line of said railway northward to the City of Sycamore and passing adjacent thereto a certain warehouse situated at the said City of Sycamore, and whereas there was then in said warehouse a certain stock of canned goods and other property owned by the said plaintiff.

“For that whereas the said defendant, in violation of its duty under the Statute in force from July 1,1874 in the State of Illinois entitled ‘An Act in Relation of Fencing and Operating Railroads,’ did not then and there keep its said right-of-way clear from dead grass, dry weeds and other dangerous combustible material, and whereas there was situated upon said right-of-way a certain switch stand about 250 feet south of said warehouse, a fire being upon said right-of-way near said switch stand ran and spread by reason of said dead grass, dry weeds and other dangerous, combustible material on said right-of-way towards and to said warehouse and set said warehouse on fire, and said warehouse was consumed, and the plaintiff’s said stock of goods and other property therein was wholly destroyed, all without any negligence of plaintiff, to the damage of the plaintiff in the sum of Eighty Thousand Dollars ($80,000) and reasonable attorneys’ fees in this behalf, and therefore plaintiff brings suit, etc. ’ ’ The first paragraphs of the 2nd, 3rd, 4th and 5th counts of the declaration are practically the same as the first count and are omitted.

Second Count.

■ “For that whereas the said defendant, in violation of its duty, under the Statute in force from July 1, 1874 in the State of Illinois entitled ‘An Act in Relation to Fencing and Operating Railroads, ’ through negligence of its employees did not keep its said right-of-way clear from dead grass, dry weeds and other dangerous, combustible material, but such dead grass, dry weeds and other dangerous, combustible material were by the negligence of defendant permitted to be and remain upon said right-of-way, near a certain switch stand maintained upon said right-of-way, a short distance from said warehouse, and whereas, without any negligence of plaintiff, a fire had originated upon said right-of-way near said switch stand, said fire was caused by said dead grass, dry weeds and other dangerous, combustible material then and there upon said right-of-way to run and spread beyond said right-of-way, in consequence whereof said fire was communicated to said warehouse and set said warehouse on fire, and the stock of canned goods and other property of plaintiff therein was destroyed, to the damage of plaintiff, etc.”

Third Count.

“That the said defendant, in violation of its duty under Secs. 1% and 1 of the Statute of Illinois entitled ‘An Act in Relation to Fencing and Operating Railroads,’ in force July 1,1874, as amended, did not then and there keep its said right-of-way clear from dead grass, dry weeds or other dangerous, combustible material.

“That by reason of defendant’s neglect to keep its said right-of-way clear as aforesaid, and without any negligence on plaintiff’s part, a fire originated upon its said right-of-way near a certain switch stand then and there situated upon said right-of-way at a distance of about, to-wit: 250 feet from said warehouse containing said canned goods and other property and said fire was spread and communicated by reason of the- defendant’s neglect to keep its said right-of-way clear as aforesaid, to the said warehouse. That said warehouse and the plaintiff’s stock of canned goods and other property therein were consumed and destroyed by said fire, to the damage of the plaintiff, etc. ’ ’

Fourth Count.

“That the said defendant, in violation of its duty under Secs. 1% and 1 of the Statute of Illinois entitled ‘An Act in Relation to Fencing and Operating Railroads,’ in force July 1, 1874, as amended, did not then and there keep its said right-of-way clear from dead grass, dry weeds or other dangerous, combustible material.

“That by reason of defendant’s neglect to keep its said right-of-way clear as aforesaid, and without any negligence on the plaintiff’s part, a fire which occurred and was then and there burning in the dead grass and dry weeds or other combustible material upon its said right-of-way near a certain switch stand then and there situated upon said right-of-way at a distance of about, to-wit: 250 feet from said warehouse containing said canned goods and other property was spread and communicated to the said warehouse. That said warehouse and the plaintiff’s stock of canned goods and other property therein were consumed and destroyed by said fire, to the damage of the plaintiff, etc. ’ ’

Fifth Count.

“For that whereas the said defendant then and there maintained upon its said right-of-way a certain SAvitch stand and lamp therein a short distance to the south of said warehouse and it was necessary for the employees of defendant to take out said lamp from said stand at certain intervals and to clean, oil and relight said lamp and replace the same in said switch stand, and Avhereas the said defendant, in violation of its duty under the Illinois Statute in force from July 1, 1874, entitled ‘An Act in Relation to Fencing and Operating Railroads/ had then and there permitted to be and remain upon its said right-of-way around said switch stand and between the same and said warehouse, dead grass, dry weeds and other dangerous, combustible material, the employees of said defendant then and there engaged in clearing, relighting and replacing said switch stand lamp, negligently set fire to dead grass, dry weeds and other dangerous combustible material then and there upon said riglit-ofway and said fire, by reason of said dead grass, dry weeds and other dangerous, combustible material, ran and spread off said right-of-way and upon adjoining-land and then and there become communicated to said warehouse, and in consequence thereof, without any negligence of plaintiff, the said warehouse was consumed and the plaintiff’s said stock of canned goods and other property therein was destroyed, to the damage of plaintiff, etc.”

The defendant pleaded the general issue. At the conclusion of the case the defendant filed separate written motions in which it challenged each of the first four counts and asked that the same be dismissed because each failed to state a cause of action. These motions were denied. The case was submitted to the jury for trial on all of the counts, who returned a verdict in favor of the plaintiff and assessed its damages at the sum of $72,926. Judgment was entered upon this verdict in favor of the plaintiff.

For the sake of convenience in this opinion the Sycamore Preserve Works will be referred to as the plaintiff and the Chicago and North Western Railroad Company as the defendant.

The evidence discloses that the railroad track of the defendant extended in a northerly and southerly direction through De Kalb County at the place where the fire occurred; that the direction of the tracks are not directly straight north and south but angle slightly to the northeast and southwest; that the plaintiff was engaged in the canning business; that it had a warehouse for storing its canned goods just immediately east of the right of way of the defendant. At approximately 250 feet south of the warehouse is a switch which is commonly referred to as the Borden switch; that on November 30, 1932, a few minutes before 3 o’clock p. m., the plaintiff’s warehouse and contents were destroyed by fire; that the fire started at, or very near, the Borden switch and spread, northerly in a fan-like shape along the defendant’s right of way until it reached the warehouse of the plaintiff and set the same on fire; that on the day in question there was a strong wind blowing from the south which carried the flames from a point which is east from the Borden switch in a general northerly direction through dry grass, weeds and other combustible material which the defendant had allowed to accumulate on their right of way. It is our opinion that the evidence establishes the above facts, and we find the same to be true as a matter of fact.

The defendant seriously insists that the trial court erred in submitting the case to the jury as there was no evidence to sustain the fifth count of the declaration and the first four counts did not state a cause of action.

We will first consider whether the evidence sustains the charge in the fifth count. It will be observed that the plaintiff charges that the defendant maintained a certain switch stand and lamp a short distance south of the warehouse and that the employees of the defendant would take out the said lamp at certain intervals, clean, fill and relight the lamp and replace it in the switch stand; that the said employees, on the day in question, a few minutes before the fire started which consumed the plaintiff’s warehouse, had taken the said light out, cleaned it, refilled it with oil and relighted it and put it back in the switch stand and in so doing they negligently set fire to dead grass, dry weeds, and other dangerous combustible material upon the right of way of the defendant, which it had negligently allowed to accumulate and by the negligence of the employees in lighting the lamp and the negligence of the company by allowing this combustible material to accumulate on the right of way, the grass was set on fire and communicated to the warehouse and destroyed the plaintiff’s property. There is no question but that the defendant was guilty of violating the statute, by allowing combustible material to- remain on their right of way. The fire did start on the right of way and the wind fanned it to the north and the plaintiff’s warehouse and contents burned, which is conclusive proof that the material along the side of the right of way was combustible.

The evidence is somewhat conflicting as to the exact time that the employees of the defendant filled and relighted this lamp, but it was only a short time before the fire was discovered. The fire was discovered by the railroad men before they knew that the plaintiff’s building was on fire. They attempted to put it out but were unsuccessful. The fire started in the afternoon, but nobody saw it until it was close to the plaintiff’s warehouse. As before stated we are of the opinion that the evidence conclusively shows that this fire started at, or near the place where the defendant’s employees cleaned and lighted the switch lamp, but, from the whole of the evidence on this point this court cannot say that the evidence preponderates in favor of the plaintiff that the fire was caused by the negligence of the employees of the defendant in filling, or adjusting this lamp. The only circumstance which points to the conclusion that it did so originate is the evidence that the fire started at a point very close to where the men were working at the time they were filling and lighting the lamp. But in our opinion this is not sufficient for the plaintiff to maintain its suit on the fifth count of the declaration.

It is the contention of the plaintiff that the defendant violated sections 1 and 1% of the Railroad Warehouse Act, Ill. State Bar Stats. 1935, ch. 114, ¶¶ 78, 79, which are sections Nos. 78 and 79 of chapter 114 of Hurd’s Revised Statute. The two sections are as follows:

“¶ 78. Fencing track — Cattle-guards—Damages— Attorney’s fees. Section 1. That every railroad corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks, with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the lands adjoining such railroad; and shall also construct, where the same has not already been done, and thereafter maintain at all road crossings now existing or hereafter established, cattle-guards, suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroad; and when such fences or cattle-guards are not made as aforesaid, or when such fences or cattle-guards are not kept in good repair, such railroad corporations shall be liable for all damages which may be done by the agents, engines or cars of such corporation, to such cattle, horses, sheep, hogs or other stock thereon, and reasonable attorney’s fees, in any court wherein suit is brought for such damages, or to which the same may be appealed; but where such fences and guards have been duly made and kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or wilfully done.
“ H 79. Right-of-way clear of combustibles. § !%• It shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named in section 1.”

The plaintiff insists that the fire starting in the grass and weeds, which were combustible material on the right of way of the defendant, and then burning in a northerly direction until it was communicated to the warehouse of the plaintiff, is sufficient to show that the fire was caused by the negligence of the defendant and they can maintain their ’suit. The defendants do not deny that they are guilty of negligence in allowing dead grass, dry weeds and other dangerous combustible material to accumulate on their right of way and that the fire of some unknown origin got into the grass and caused the warehouse of the plaintiff to be burned, but they seriously insist that before they can be held liable, in damages, the plaintiff must go farther than to just show the negligence of the defendant in leaving this combustible material on their right of way, and prove that the fire started through some act of the defendant.

It further insists that sections 1 and 1% must be read together, since section 1, relating to the fencing and operating of railroads, is limited to damage done by the railroad, its agents, engines or cars. The plaintiff just as seriously insists that the only part of section 1 which should be read in connection with section 1% is that which provides for penalties of attorney’s fees where suit is brought for damages, which occurred by a breach of the statute.

We cannot agree with the defendant that the word “damages” in section 1 of the above act, can be construed to be a penalty. The only penalty mentioned in this section is attorney fees where suit is brought to collect damages caused by the acts of the railroad company. Damages were recoverable for injuries to property at common law. On page 88, volume 2, Chitty’s Blackstone (1830) we find this language: “Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs. Now, since all wrong-may be considered as merely a privation of right, the plain, natural remedy for every species of wrong is the being put into possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or where that is not possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, etc.”

In the case of Holmes v. Holmes, 64 Ill. 294, 297, our Supreme Court quoting from Greenleaf on Evidence say: “Damages are given as a compensation, recompense or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury, neither more nor less.” Webster’s International dictionary describes damages as “the estimated reparation in money for detriment or injury sustained.” Worcester defines it as payment for or indemnity for injuries. From an examination of these authorities, it must-be presumed that the legislature in using- the word “damages” did not refer to or impose a penalty upon the railroad company, but defined specific duties, and a violation of them would entitle a person to damages who had stock killed by the railroad company, but only such damages as they were entitled to under the common law.

The plaintiff insists that the first four counts of its declaration state a cause of action and has cited numerous cases to sustain its contention. In all of the cases where our own courts have discussed this statute, the question of the negligence of the railroad company in starting the fire was involved, and the court’s ruling in each case was necessarily not only regarding the negligence of the railroad company in not complying with the statute, but also regarding its negligence in starting the fire on their right of way. None is authority for the purpose of showing that the railroad company would be liable simply because the fire started on their right of way, which they negligently failed to keep free and clear of combustible material as required by the statute.

In the case of St. Louis, B. & M. Ry. Co. v. Maddox (Tex. Civ. App.), 152 S. W. 225, the court held a railroad company liable for damages which had negligently allowed combustible grass to remain on its right of way in which a fire was started, by means of a passenger on one of the defendant’s trains throwing a lighted cigar stub into the grass and igniting the same.

In Northern Pac. R. Co. v. Lewis, 51 Fed. 658, one of the contested questions was whether the locomotives of the defendant had started the fire. The federal statute provided that all railroad companies passing through the territory of Montana should keep their right of way free of dead grass, weeds and other dangerous combustible material and the failure to do so is prima facie evidence of negligence. The court held that it was a question of proof and for the jury to decide how the fire had started and whether the plaintiff had proven a case.

In the case of Spokane International Ry. Co. v. United States, 72 F. (2d) 440, the court uses this language : “We come then to the effect of the Idaho statute which required defendant to keep its right of way ‘clear and free from all combustible and inflammable material, matter or substances,’ during the closed season from June 1st to September 1st. This criminal statute established a standard of care, failure in the observance of which would subject defendant to civil liability if such failure caused or contributed to the damage of another. If the fire originated on defendant’s right of way in inflammable material, which in violation of the statute had been allowed to accumulate there, it would be immaterial whether a spark from defendant’s engine or the act of a third person from without defendant’s right of way had caused the fire. Curoe v. Spokane & I. E. R. Co., 32 Idaho 643, 186 Pac. 1101, 37 A. L. R. 923 (1920). On the other hand, even though the fire was set by a spark from defendant’s engine, if it ignited material lying outside of the right of way, negligence in failing to maintain the right of way in accordancé with the statute would be immaterial unless such failure contributed to the spread of the fire. ’ ’

It will be observed that the federal court cite the case of Curoe v. Spokane R. Co., 32 Idaho 643,186 Pac. 1101. This case quotes the Idaho statute on which the federal case was based. Two sections of the statute are as follows: “Sec. 2948. Every person, firm or corporation operating a railroad shall keep the ground for 50 feet on each side of the center of the track, or such portion thereof as may be owned or controlled by such person, firm or corporation, clear of combustible materials, except ties and other materials necessary for the maintenance and operation of the road, from June 1 to October 1 of each year. . . . Any person, firm or corporation violating any provisions of this section shall be guilty of a misdemeanor and shall be subjected to a penalty of not more than $100 for each offense.

“Sec. 8346. . . . Any railway company which shall permit any fire to spread from its right of way to the adjoining lands, is guilty of a misdemeanor.”

From the language used by the federal court and from the wording of the Idaho statute, it will be observed that this statute is penal in its nature and anyone violating the same is guilty of a misdemeanor and shall be subject to a fine. The second section provides that the railroad company shall be guilty of a misdemeanor, if it permits any fire to spread from its right of way to adjoining lands regardless of how the fire may have started. „ We do not consider this case or the federal case authority for the proposition that the railroad company would be liable for a fire which started on their right of way and spread to adjacent property, as the Idaho statute is not the same as ours.

In the case of Chorman v. Maryland, D. & V. Ry. Co., 5 Boyce (28 Del.) 339, 93 Atl. 559, the laws of that State provide as follows: ‘ ‘ That if any railroad company owning or operating any railroad within this state shall suffer to remain on any part of the land owned or controlled by it for railroad purposes within this state any brush or other combustible matter, and if such brush or other combustible matter shall from any cause whatsoever be set on fire, and by reason thereof, the property, real or personal, of any person or persons shall be destroyed or impaired, such railroad company shall be liable to pay the damages resulting therefrom,” etc. An examination of this statute discloses that it is much more drastic than the Illinois law. This statute provides that if the company does not keep their right of way free and clear from combustible materials they shall be liable for damage done by fire from any cause whatsoever, regardless of whether the fire is caused by the negligence of the railroad company or by any other cause.

The case of Richmond v. McNeill, 31 Ore. 342, 49 Pac. 879, also involved a question of how the fire started, but because of instructions given by the trial court, the reviewing court in discussing the propriety of these instructions uses this language: “If a railroad company, not using its line of railway, were to permit dry grass or shavings to accumulate on the track and right of way, and such material should be set on fire by any means by another, it would certainly not be contended that the railroad company would be liable for any damages that might result therefrom. So, too, if the railroad track, with inflammable material allowed to accumulate thereon, were in constant use by the company in the operation of its trains, and some evil-disposed person were to apply a lighted match to such material, or if the same were struck by lightning, whereby it became ignited, and injury resulted, the railroad company would not be liable therefor. The use of steam as a motive power renders a fire in the locomotive a necessity, and it is against this agent, when so confined and used, that the company’ operating the engine must carefully guard; and to render it liable for negligence in this respect it must appear, either directly or by necessary inference, that the fire doing the injury complained of emanated from the receptacle in which the legislative grant permits it to be transported.”

The only case cited by either the plaintiff or the defendant which has not had the element of how the fire started or which is controlled by some particular statute of the State in which the action arose is Mobile & O. R. Co. v. Mathis, 188 Ky. 47, 220 S. W. 1068. The court in its opinion says: “A more serious question arises with respect to instruction No. 1, which is as follows: ‘ The court instructs the jury that it was the duty of the defendant, Mobile & Ohio Railroad Company, to keep its right of way clear from weeds, high grass, and decayed timber, which, from their nature and condition, are combustible material, and liable to take and communicate fire! from passing trains to abutting or adjacent property; and if you believe from the evidence that the defendant negligently failed to do this, and by reason thereof a fire started on its right of way, and spread to the adjacent or abutting property, and destroyed the property of the plaintiff Mathis, the jury will find for the plaintiffs the damages thereby sustained, and unless the jury so believe they will find for the defendant. ’

“Under this instruction the company was liable if it failed to comply with its duty to keep its right of way clear from weeds, high grass, and decayed timber, which, from their nature and condition, are combustible material, and liable to take and communicate fire from passing trains to abutting or adjacent property, ‘and by reason thereof a fire started on its right of way, and spread to the adjacent or abutting property, and destroyed the property of the plaintiff Mathis.’ In other words, the liability of the defendant was made to depend, not on whether the combustible material was set on fire by a passing train, but on the mere presence of the combustible material, if. the fire started on the right of way. . The necessary effect of the instruction was to make the company liable if the fire started on its right of way from the presence of combustible material, even though it may have been started by a tramp or some third party.

■ “In our opinion the statute is not susceptible of such a construction. The prohibition of the statute is not directed against weeds, high grass, and decayed timber in general, but only against such as ‘from their nature and condition are combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property.’ The purpose of the statute was to prevent fires by passing trains. An examination of the numerous cases on the subject will show that in every one the court was careful to point out that, if a railroad company permitted combustible material to accumulate on its right of way, it would be liable for the consequences of a fire therefrom, notwithstanding the fact that the engine was equipped with proper spark arresters, if it appeared that the material was set on fire by a passing train. We therefore conclude that the instruction was erroneous, in not requiring the jury to believe that the combustible material was set on fire by a passing train.” This court held that it was not enough for the plaintiff to show that the railroad company was negligent in leaving combustible material along its right of way and the same caught fire and damaged their property, but they must go further and show that the fire was started in some manner by the railroad company.

In the case of Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, the statement of the court in regard to the facts is as follows: “Near the east end of the Free Bridge, which connects St. Louis and East St. Louis, plaintiff in error has several tracks which pass under the bridge. Between ten and eleven o’clock at night on February 11, 1927, defendant in error and her husband were driving east across the bridge when they observed a large volume of dense, black smoke ahead of them. This smoke was coming from one of plaintiff in error’s engines. They stopped about thirty feet from the smoke and waited five or ten minutes for it to clear away, when the wind suddenly changed and blew the smoke over them, and about a second later another car came up from the west and struck their car. Thereafter defendant in error got out of the car and went to the rear of it to see what damage, if any, had been done, and while she was between the two cars a third car came up and struck the second, forcing it forward. She was caught between the cars and was severely injured.” Mrs. Oswald sued for and recovered damages against the railroad company.

The court in discussing whether the negligence of the railroad company was the proximate cause of the injury uses the following language: ‘ ‘ There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which might result from his act. If the negligence does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.”

It is our conclusion that in the present case, the negligence of the railroad company in leaving combustible material on its right of way was not the proximate cause of the injury to the plaintiff, but that the presence of the grass, weeds and combustible material on the right of way, although negligent, did nothing more than furnish a condition by which the injury to the plaintiff was made possible.

There are other assignments of error, but the conclusions that we have reached make it unnecessary for us to discuss them.

It is our opinion that the first, second, third and fourth counts of plaintiff’s declaration do not state a cause of action and the court erred in overruling defendant’s motion for a directed verdict as to these counts.

The judgment of the circuit court of De Kalb county is hereby reversed.

Reversed.