text:
    John Wittbold and Company, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 39,603.
    Opinion filed March 16, 1938.
    Rehearing denied April 1, 1938.
    Edwin B. Boorman, of Chicago, for appellant.
    Robert D. Melioic, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

Plaintiff brought suit against the City of Chicago Heights on a series of warrants issued against various municipal funds of that city. Each of the warrants is in the following form;

‘ ‘ Chicago Heights, Ill...........19..

“The Treasurer:

of the City of Chicago Heights jSTo.......Will pay to the order of..........$..... Dollars for .......... out of money in the treasury not otherwise appropriated from..........Fund.

City Clerk

Mayor”

Each warrant was issued in payment for supplies of various kinds furnished to the City of Chicago Heights, and in each case, the blank warrant as shown herein, was filled in to indicate the particular fund against which it was drawn. The complaint filed in the cause contains the following allegation: “That the said defendant, Municipal Corporation, being so possessed of the said appropriated funds for Street and Alleys Fund, Firemen Funds and Property Funds; for the corporate purposes as indicated in its several yearly appropriation bill, did issue on said form of Warrant, by inserting therein the date, Humber of Warrant, the name of the payee, the amount due for service or material and the name of the fund as indicated in the appropriation ordinance,” which is followed by a statement in the complaint of the purpose for which the warrant was given, together with a statement to the effect that in each case the warrant was cashed and indorsed, and that the title to the same is now in the plaintiff. The defendant filed an answer to the complaint filed in the cause in which it tacitly admits that the warrants were issued and cashed, as alleged, and that a tax had previously been levied to supply funds for the various purposes appropriated for the maintenance of the village, but “denies that there was any money in the appropriated funds in the City Treasury, at the respective dates of issuance of each and every of the city warrants described in said amended complaint, to pay each and every of said city warrants respectively; and denies that it, by its treasurer, was in possession of any appropriated funds and moneys, against which said city warrants were drawn and from which said city warrants were payable, at the respective dates of issuance of said city warrants.”

As we understand the answer of the defendant, the position taken by it is that the issuing of these warrants against designated funds for which a tax had been levied, created a debt beyond the constitutional and statutory limit which had already been reached when the warrants were issued. It is to be noted that the defendant does not deny that the taxes had been collected by it for the purpose for which they were originally appropriated and levied. Its position seems to be that even though the taxes had been levied, collected and allocated to the funds for which they were originally appropriated, that they have been diverted to other uses than those for which they were originally appropriated, and that therefore plaintiff cannot recover.

A motion was made by plaintiff to strike defendant’s answer and for judgment. After a hearing, the court granted the motion and entered judgment for plaintiff. This is an appeal from that judgment.

From the pleadings here, we conclude that the defendant had levied and collected the taxes for the purposes for which they were appropriated, and that these warrants were issued against the various funds for which the tax was collected and appropriated.

In People v. Chicago & N. W. Ry. Co., 308 Ill. 54, a similar situation arose. In making a statement of the issues involved, the Supreme Court said:

“It appears from the record that after the taxes for the city of Chicago were levied and collected for the year 1920, as provided by the appropriation ordinance of the city, there was found to be a deficiency amounting to $8,000,000. In the year 1921 this deficiency was shown to be partly in the form of open indebtedness on vouchers and pay-rolls of the city and partly in the form of judgments against the city. Thereafter the city council passed an ordinance authorizing bonds to the extent of $8,000,000, and this ordinance was submitted to a referendum vote, as required by law, and approved by the voters of the city. Bonds were thereafter issued and sold and all or a part of the. proceeds used to pay indebtedness theretofore incurred by the city. In the year 1921 the city levied $600,000 for principal, and $350,000 for interest, to pay the interest on all of these bonds and to take up and retire some of them, and it is insisted that the levy so made is illegal and unconstitutional.” In this case, in holding that the bond issue was legal and valid, the court said:

“It would seem to be argued by appellant that because the statute expressly provides for an annual tax levy for current expenses of the corporation, such provision of the statute must be construed so as to preclude the city from the right to raise funds for the current expenses through the medium of bonds. This argument of counsel would seem to be, indirectly at least, answered by the reasoning of this court in People v. Village of Hyde Park, 117 Ill. 462, and People v. Bowman, 253 Ill. 234, and more directly by the holding in Stone v. City of Chicago, 207 Ill. 492. . . . The opinion in that case, [Stone v. City of Chicago, supra,] comments favorably on City of Huron v. Second Ward Savings Bank, 30 C. C. A. 38, saying on page 503, that the objection made to a recovery upon the bonds sued upon was that ‘the power granted by the charter to the city council to pay current expense warrants of the city by a tax levy implies the exclusion of the power to refund such warrants by the issue of negotiable bonds. The court said: “The contention would be worthy of serious consideration if the express power to issue negotiable bonds was not also granted to the city council by this charter, but the charter grants to the council authority ‘to appropriate money and provide for the payment of the expenses and indebtedness of the corporation, ’ and gives it both the power to levy taxes and the power to borrow money and issue bonds for this purpose. It cannot be that the grant of either of these powers excludes either, and the choice of the method by which the indebtedness of the city should be paid is left to the discretion of the council.” “This court also in Stone v. City of Chicago, supra, quotes approvingly from Taylor v. Thompson, 42 Ill. 9, where it was held that a tax for a corporate purpose was ‘one to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it’5 and also quotes with approval from National Life Ins. Co. v. Mead, 13 S. D. 37, where it was held that the power to issue bonds is co-extensive with the power to borrow money, and that either power might he exercised for any corporate purpose . . . .” (Italics ours.)

We are of the opinion that the circuit court was correct in sustaining the motion to strike, and the judgment is, therefore, affirmed.

Judgment affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Anna Deman, Administratrix of the Estate of Adolph Deman, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 39,673.

      Opinion filed March 16, 1938.
    Johh W. Freeds and Herbert J. Deary, both of Chicago, for appellant; E. C. Craig, Y. W. Foster and C. A. Helsell, all of Chicago, of counsel.
    Royal W. Irwir, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

On January 8, 1937, plaintiff, as administratrix of the estate of Adolph Deman, deceased, obtained judgment against defendant for the sum of $9,000, upon the verdict of a jury, from which judgment this appeal is prosecuted. In the declaration filed on November 7, 1930, it is charged that on October 3, 1930, the day plaintiff’s intestate met his death, defendant was a railroad corporation, employed in interstate commerce, and that the decedent, while in the employ of defendant and while engaged in work in connection with interstate commerce, through the negligence of defendant, was killed.

While a number of questions are presented to us for consideration, the principal and pertinent question is, whether or not, on the day in question, decedent was engaged in interstate transportation, and whether the plaintiff has established snch fact by the weight of the evidence. The record indicates that at the time decedent met his death on October 3, 1930, he was employed by defendant as a carpenter’s helper, and that he had nothing to do with the movement of trains.

A carpenter named Brown, a witness for plaintiff, testified to the effect that on the day in question, the witness was temporarily acting as carpenter foreman for defendant at 27th street and the Illinois Central tracks in Chicago; that the day before the accident, the decedent helped the witness to assemble a smokejack in a stall of the north roundhouse, in which there were 18 or 19 stalls; that two of the stalls in the roundhouse were used in washing out and repairing Illinois Central engines; that there were two roundhouses adjacent to each. other, and that road engines did not come into the roundhouse where the decedent was employed ; that the suburban service on the road in question had been electrified, and that suburban engines did not come into this roundhouse, and that to the witness’s knowledge, no passenger engines came into it; that the roundhouse is small, and the turntable is used for turning Michigan Central engines, such engines being switch engines, which come into a roundhouse after switching around the yard and down the tracks; that two of the 18 stalls were used as a paint shop; that on the day of the death of the decedent, “We were working on the smoke jack for stall 12. The old smoke jack broke down or rotted away and we were building a new one to put in the old stall. Mr. Deman worked on the smoke jack on October 2nd, the day before he was killed. It had been started about a month before.” This witness also testified to the effect that the other stalls were used by the different locomotives that were being repaired by the employees, and that he last saw Mr. Deman on the morning of the accident at about twenty minutes to eight, when the witness talked to him. He also stated that shortly thereafter he was informed that Mr. Deman had been killed; that the witness went out and found the body lying between the rails of the main lead track, which is about 25 or 30 feet south of a coal chute, and that he noticed that the dirt between the tracks was scraped up to the extent of about 10 or 15 feet; that each stall in the roundhouse has a separate track leading into it through a double door, through which the locomotives go in; that he heard an engine go by approximately 3 minutes before he found Mr. Deman, and that while he did not recall hearing any bells ringing, he did notice the noise of the operation of the locomotive; that the engine in question was operated by a man named Sykes; that the engine was going south, and that Sykes was in the cab hanging out of the window, and that after the witness saw the engine pass, he saw Mr. Deman’s body; that the engine he saw was a Michigan Central engine, and that when he saw it, it had completed a turn around the north end of a coal chute, and straightened out on a track, and that Deman was lying about 30 or 35 feet south of the coal chute.

Robert Sykes, the man mentioned by the former witness as having had charge of the engine, was produced by plaintiff, and he testified to the effect that at the time in question, he was a hostler, and that “I took engines to the roundhouse, took them in and out of the roundhouse and on the cinder pit. I didn’t do any of the work on the engines myself. I am not a licensed engineer, and do not operate trains or do switching, but I do operate engines in the yard.” He testified that “the engineer was in the engine at the time. I was going to back it down to the roundhouse and turn it around on the turntable so it could go out on another train. I don’t know where the engine came from. I don’t know the name of the engineer. The engine stopped and I got np to the engineer’s seat. The engine was headed north and I drove it south. The bell was turned off when I got on the engine, but the steam was up.” He further testified to the effect that as he went around a curve, the top of a tank and coal pile thereon were higher than the witness was from the engineer’s seat, and that he could not see over this tank and ahead on the track; that he could not see the rails on which he was driving from where he sat, until he got around the curve, and that he went around the curve at the rate of 5 miles an hour; that he did not see Deman; that he put the engine on a turntable and came back in about 5 minutes, and that a man named Wagner called his attention to the fact that Mr. Deman was lying on the track, dead. This witness stated that he could not recall whether the bell on the locomotive was ringing at the time, but that if it was, he could not hear it because the machines at the sand pit and coal chute both made a loud noise. The engine in question, was a switch engine.

An employee named Wagner testified to the effect that he was a machinist, employed by the defendant at the roundhouse in question; that he saw Deman on the morning in question as Deman was walking down the tracks, where he was found; that Deman had no tools, and that when the witness saw him, he was walking between the rails, and that he was then just north of the coal chute, a distance of 15' or 20 feet, and 50 or 60 feet south of the carpenter shop; that at the time he saw Deman, he did not see any locomotive on the track mentioned, nor did he hear any bells ringing; that he heard a lot of other noises, because it was a noisy place on account of the shaking of grates to knock out fires, the movement of rods and machinery which operates the coal chute and the buckets in the coal chute.

George F. Hankey testified to tlie effect that he had been employed by the defendant for 14 years as a building foreman, with headquarters at 26th street, and that his duties took him to the roundhouse referred to; that in October, 1930, “they” were fixing-up a smoke jack to'put in one stall; that Deman had worked for him for over a year, and was often in the carpenter shop at 27th street; that when Deman worked in the roundhouse he would report there in the morning, and that during that year, he worked out of the carpenter shop once or twice a week, and that he also worked in the carpenter shop across the tracks; that during the cold months in the winter, he worked as a watchman at the 26th street carpenter shop directly across the street from the roundhouse. This witness also testified to the effect that he had checked over his records for the months of September, October and November, 1930, with reference to the work done on the smpkejack referred to; that the old smoke jack was taken down during the first part of September, 1930, and that the men worked on the new one during September; that when the men had nothing to do, they would work on this smoke jack, which was finally finished in November, 1930, when the roof was put on it. On cross-examination this witness stated, in substance, that during the year mentioned, and prior to the time Deman worked on the smoke jack, Deman had done carpenter work on buildings, roundhouses and depots, and renewed boards on suburban platforms of different stations where the electric trains stopped, but that the witness did not know whether or not Deman ever worked at platforms where the South Shore trains came from South Bend, Indiana; that during the time mentioned, and prior to the time he worked on the smoke jack, Deman had mixed concrete for street pavings at crossings, and had also done carpenter work at planked crossings, but that there were no planked crossings on the terminal; that so far as the witness remembered, Deman had never worked in the coach yard. This witness stated that Deman would come under the maintenanee-of-way department.

John Collins, an employee of the carpenter department of the defendant railroad, testified that Deman had worked for him for 9 years prior to his death. This witness described the smokejack already referred to, and the work done in connection with its construction. His testimony was further to the effect that for the 9 years mentioned, his crew was supposed to take care of the roundhouse and shop, and were also put to work fixing platforms on the suburban system. This witness stated that the decedent had nothing to do with the movement of engines or trains.

It seems to be admitted by plaintiff that unless decedent, at the time of his death, was engaged in interstate commerce, even though he met his death through the negligence of the defendant, plaintiff cannot recover here.

In Baltimore & O. C. T. R. Co. v. Industrial Commission, 366 Ill. 223, where an employee of the railroad had been run over and killed by one of its trains, and a hearing was had before the Illinois Industrial Commission on the question as to whether or not compensation should be paid under the Workmen’s Compensation Act, the question arose as to whether or not claimant, at the time of his death, was engaged in interstate commerce. The commission found that the decedent was not so engaged, and that, therefore, the railroad was required to pay compensation under the Illinois act. On appeal, the finding of the Industrial Commission was affirmed, and the court said: “The true test is whether at the time of the injury, the employee was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. (Shanks v. Delaware, Lackawanna and Western Railroad Co., 239 U. S. 556.) The mere expectation that the employee would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the Federal Employers’ Liability act. Erie Railroad Co. v. Welsh, 242 U. S. 303; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473.”

In Day v. Chicago & Northwestern Ry. Co., 354 Ill. 469, an action was brought in the circuit court of Peoria county by an employee of the Chicago and Northwestern Railroad Company to recover damages for personal injuries alleged to have been sustained by him while in its employ. The declaration in that case charged, in substance, that the plaintiff was employed in the shops of the defendant company at South Pekin, Illinois, and that the railroad company was eng'aged in interstate commerce and subject to the provisions of the Federal Employers ’ Liability Act; that on February 21, 1929, plaintiff was working- on a locomotive of the defendant company which had been used in interstate commerce, and which defendant, after making repairs thereon, intended to return to and engage in interstate commerce, and while so working upon the locomotive, plaintiff was injured through the negligence of defendant by one of its servants, by which he lost his right arm. Issues were joined on the plea of the general issue, and after a trial, a verdict was returned in favor of plaintiff. A motion with appropriate instructions to direct the court to find for the defendant, were presented to the court at the close of all the evidence, which was denied. Judgment was entered on the verdict, and on appeal to the Appellate Court, the judgment was reversed, and on appeal to the Supreme Court, the judgment of the Appellate Court was affirmed. In commenting upon the facts, the Supreme Court in that case stated that the locomotive in question was sent to .the shops of the defendant company in South Pekin on February 14, 1929, where heavy repairs were made on it, and that it was in the roundhouse there until March 16, 1929, on which date, the repairs being* completed, the locomotive was taken on a trial trip; that from February 14th until March 16, 1929, the locomotive was incapable of being used in transportation; that plaintiff, a machinist in the employ of the defendant company, while attempting to replace a radius bar on the right side of the engine, got the bar caught and was unable to release it, and while attempting* to release the bar for the purpose of putting it in place, another employee of the defendant, lino wing nothing* of the situation, started a cylinder-boring* bar in operation, and that the vibration which shook the radius bar loose, caught the defendant’s hand and injured it. From the statement of the court, we g*ather that the evidence further showed that the plaintiff was ordered to work on the locomotive by his foreman, who told him that the locomotive, after being* repaired, would be put back on its regular run, which was in interstate transportation. In holding that the employee in that case could not recover, the Supreme Court said:

“Not every employee of an interstate carrier is engaged in interstate commerce, and the burden is upon the plaintiff who charges in his declaration that he comes within the provisions of the Federal Employers ’ Liability act to prove such allegation. (Chicago and Alton Railroad Co. v. Industrial Com., 290 Ill. 599; Illinois Central Railroad Co. v. Industrial Board, 284 id. 267.) The correct test in determining* whether the plaintiff comes within the provisions of the Federal act is whether he was, at the time he was injured, engaged in the work of interstate transportation or some branch of endeavor so closely, connected with it that it was for all practical purposes a part of such work. There is no dispute in the evidence as to the instrumentality upon which the plaintiff was worldng at the time he was injured or the character’ of the work in which he was then engaged. There is a broad distinction between the application of the rule to fixed objects, such as bridges, tracks and road-beds used in interstate transportation where the employee is injured, and a machine that may or may not be used in interstate transportation and by means of which instrumentality the employee is injured. The locomotive, at the time the plaintiff was hurt, was an inactive object, incapable of moving or traveling under its own power. While it is true that at the time the locomotive came into the roundhouse it had been used in interstate transportation and was expected to be returned to interstate transportation, yet that fact, under the rule stated, is not sufficient in itself to make it an instrumentality of interstate transportation at the time the plaintiff was maimed. The case presented is not a case in which a locomotive is pulling- a train in interstate transportation and while on such trip an-accident happens to the locomotive and it is repaired en route so that it may complete the trip, but in the case at bar we have a locomotive that at the time the injury happened to the plaintiff was not engaged in transportation of any kind but was unable to transport anything whatsoever. It then had no tractive power." See also, Lavigne v. Chicago, M. St. P. & P. R. Co., 287 Ill. App. 253.

In the instant case, while there is some suggestion that plaintiff’s intestate, at various times previous to the time in question, had been engaged in repairing-various station .platforms and doing other carpenter work along the railroad line of the defendant company, in and about the yards, there is not a scintilla of evidence to prove that at the time of the accident, which resulted in his death, he was engaged in any work in connection with interstate commerce. From a review of the cases, including those cited in this opinion, we conclude that, because of the fact that a man is employed by a railroad company, no presumption is raised that he was engaged in interstate commerce at the time he may have suffered an injury. On the contrary, from the statements of the Supreme and Appellate Courts in their opinions in the cases cited, we conclude that the rule is that the burden is upon the person seeking to establish that fact, to prove by a preponderance or greater weight of the evidence, that he was so engaged. We are further of the opinion that, in the instant case, plaintiff has wholly failed in this regard. Therefore, the judgment of the circuit court of Cook county is reversed and the cause is remanded.

Reversed and remanded.

Hebel, P. J., and Denis E. Sullivan, J., concur.


text:
    Benjamin G. Kilpatrick, Appellee, v. Walter H. Buhlig et al., Defendants. Appeal of Chicago Lawn State Bank, Appellant.
    Gen. No. 39,966.

      Opinion filed March 16, 1938.
    Castle, Williams & McCarthy, of Chicago, for appellant ; Emmett J. McCarthy and John D. Clahcy, Jr., of Riverside, of counsel.
    Harry A. Biossat, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

In order that a clear understanding may be had of the nature of the issues involved here, we deem it necessary, first, to set forth in full the notice of appeal filed in the superior court of Cook county on December 10, 1937, which is as follows:

“Defendant, Chicago Lawn State Bank as Trustee under the provisions of a certain Trust Agreement known as Trust No. 31, for and on behalf of James A. Pearson, hereby appeals to the Appellate Court of Illinois, First District, from the order rendered and entered in this cause in the Superior Court of Cook County, Illinois, on November 19, 1937, appointing one Ben Cold receiver of the property involved herein, and from the further order entered herein on December 2, 1937, denying the ■ motion to vacate said order.

“Defendant, Chicago Lawn State Bank as Trustee under the provisions of a certain Trust Agreement known as Trust No. 31, for and on behalf of James A. Pearson, prays that the order heretofore entered herein on November 19, 1937, appointing Ben Cold receiver of the property involved in this cause, and the further order entered herein on December 2, 1937, denying the motion to vacate said order, be reversed by said Appellate Court or .reversed and remanded with directions to the trial court to vacate and set aside said orders.”

In a foreclosure proceeding brought to foreclose the lien of a mortgage trust deed on real estate, given to secure certain bonds, a decree of sale was entered, and on August 21, 1937, a sale of the property was had. On October 21, 1937, an order was entered approving the sale. Thereafter, on November 19, 1937, an order was entered vacating the sale. On the same date, to wit: November 19, 1937, the court entered a finding and order, in part, as follows:

“The Court . . . finds that it is provided in the trust deed herein sought to be foreclosed that upon the filing of a bill to foreclose, the Court in which the bill is filed may, before or after sale, and without regard to the solvency or insolvency of the person or persons liable for the payment of the indebtedness at the time of such application for a receiver, appoint a receiver during the pendency of the foreclosure suit, and in case of a sale and a deficiency, during* the period of redemption.

“And the Court having heard evidence, and being fully advised in the premises, finds that it is necessary for the preservation of the premises which are the subject-matter hereof, that a receiver be appointed for said premises, it appearing to the Court that it is probable that there will be a deficiency after sale, and that the grantors in said trust deed are unable to satisfy the same, and that the premises are scant security for the amount due.

“It is therefore ordered, adjudged and decreed that Ben Gold be hereby appointed receiver of the premises described in the complaint in equity filed herein, and legally described as follows: [here follows legal description] upon said receiver giving a bond in form and with surety to be approved by the Court in the amount of $7,500.00,said bond to be filed within ten days from the date hereof, and that plaintiff, upon due cause being shown, is hereby excused from filing a bond herein.

“It is further ordered that said funds collected by said receiver shall be deposited to said receiver’s account, and that the said receiver be and he is hereby given full power and authority to operate, manage and conserve the said premises; to find tenants therefor, and to lease same; to collect the rents, issues and profits therefrom; to insure said premises against loss by fire or other casualty; to employ janitors and other help; to make all necessary expenditures in the operation of said property; to employ counsel; to keep said premises in good condition and repair; and generally to have any and all other powers of receivers in like cases, and subject to the further order of this court. ’ ’

On November 22, 1937, James A. Pearson, named in the notice of appeal, asked leave to file an intervening petition in the cause which was denied, and in the order denying leave, the court made the following finding:

“That James A. Pearson is the record title holder of the property involved in this cause, having acquired title by virtue of a bankruptcy sale in the Federal Court for the Northern District of Illinois, Eastern Division, entitled ‘John Bain Inc.’ and numbered 61137, said conveyance having been made to James A. Pearson on July 27, 1937 and recorded on August 6, 1937 as document numbered 12037373, and upon the statement of attorney for the plaintiff, the Court finds that James A. Pearson, as such title holder, is merely a nominee of John McCarthy, Eugene J. Holland, James Costen and William O’Hare, and that said James A. Pearson is merely an employee in the office of John McCarthy.

“That E. B. Jenness was the purchaser at the Master’s sale heretofore held herein for and on behalf of John McCarthy, Eugene J. Holland, James Costen and William 0 ’Hare, which sale was subsequently disapproved by this court for the reason that no part of the bid was paid and that no further sale has been held in this cause.

“That the said James A. Pearson has offered to operate the property involved in this cause by posting a good and sufficient surety bond as holder of the legal title, upon such terms and conditions as the court shall see fit, accounting for the rentals received from the property in such a manner as the court shall desire, without any compensation to himself or his attorneys; that the said James A. Pearson is in the real estate management business, in the employment of said John McCarthy, his office being located within a short distance of the property in question, and as such, he is familiar with the operation and management of properties in that section of the City of Chicago.” Thereafter, on December 2, 1937, a written motion was made by Pearson to vacate the order just referred to, for the following reasons: (1) That no notice was served upon James A. Pearson, owner of the equity, to support the order appointing the receiver; (2) that no bond was furnished by the complainant as required by statute; (3) That the court did not read the intervening petition, and (4) that the order entered November 22, 1937, contained certain findings of fact, based upon the statement of the attorney for plaintiff only.

After a hearing on this motion, and on December 2, 1937, the court entered a further finding and order to the effect that on November 19, 1937, when the receiver was appointed, James A. Pearson was not a defendant in the cause, that he had not appeared by himself or by anyone for him, that there was no necessity for, nor did any rule of the court require that notice be served upon Pearson. The court further found that with reference to the fact that no bond was furnished by the complainant, that the court, for good cause, had excused such complainant from filing bond, that the court had fully considered the intervening petition filed on November 22,1937, and that the court was fully informed as to all the facts and statements contained therein. The court ordered that the motion of Pearson to vacate and set aside the order entered on November 19, 1937, appointing Gold receiver, be denied, and that the motion to vacate the order of the court denying Pearson leave to file an intervening petition, entered on November 22, 1937, be also denied. It is from the two orders mentioned that this appeal is prosecuted. The appeal bond filed and approved is in the sum of $250, and contains the following* condition: “The condition of the above obligation is such that whereas the said Superior Court of Cook County in the state aforesaid did on December 2, 1937, enter an order denying the motion of the said James A. Pearson to vacate an order entered by said Honorable Court on November 19, 1937, appointing one Ben Gold receiver, and further denied the motion to vacate an order entered on November 22, 1937, denying leave to said James A. Pearson to file his Intervening Petition in this cause, from which said order James A. Pearson has taken an appeal to the Appellate Court for the First District of Illinois.” It will be noted that the notice of appeal states that the appeal is by the Chicago Lawn State Bank, as trustee, on behalf of Pearson.

The grounds for reversal are (1) that the petitioner or his predecessor in title was entitled to receive notice of the motion for the appointment of the receiver, but that neither received such notice; (2) that a receiver should not be appointed without evidence to sustain the appointment and then only with due regard to the rights of the owner of the property, and (3) that in no event can the trial court waive the plaintiff’s bond without giving notice and full hearing to the owner of the equity.

In the decree of foreclosure entered on August 22, 1934, the court found, among other things, that the Chicago Lawn State Bank was the trustee under the trust deed being foreclosed; that an order of default was entered a's to the Chicago Lawn State Bank, as trustee, and that it defaulted; that the receiver of the Chicago Lawn State Bank and the Straus National Bank and Trust Company, as receiver of John Bain, Inc., had filed their appearances in the cause; that John Bain, Inc., had been served with summons and was defaulted; that the plaintiff, Benjamin Gr. Kilpatrick, as successor trustee, for the benefit of the holders and owners of the bonds and interest coupons secured by the trust deed, was entitled to recover the amount due on the bonds, with interest, amounting to $372,162.95, and was entitled to a lien upon the premises for the amount mentioned, subject to the lien of Kilpatrick, as successor trustee, for his own use and benefit in the sum of $10,148.30, which the court found to be superior to the right of any of the other defendants. In this document the court further found that at the time of the entry of the decree, a-receiver was then in possession of the property, and the court ordered that in case the receivership of the real estate in question be terminated, and if no receiver should be in possession at such time, then the complainant might at any time, either before sale, or in the event of a deficiency, have the right to apply for the appointment of a receiver to collect the rents, etc., and apply the same to the payment of any deficiency until the statutory period of redemption should expire, regardless as to whether or not such premises should have been redeemed from sale, and until the execution and delivery of a master’s deed, or until the further order of the court, unless any such deficiency should have been sooner satisfied. While the record is silent on the question, we presume that the receivership existing at the time of the entry of this decree, was terminated when the order approving the sale was entered.

The master’s report of sale filed on October 21,1937, recites among other things, that pursuant to the decree of August 22, 1934, a master’s sale was held, and that the sum of $40,000 was bid for the premises. Thereafter, on October 21, 1937, the court made a finding to the effect that the property had been appraised at the sum of $110,000, that the taxes due on the premises at such time were $38,000, that for two years prior to the date of the entry of the order, the property had not netted more than $3,000 a year after the payment of expenses for operating, and that no loan could be obtained on the premises sufficient to pay the taxes on the premises.

Except the finding of the court made on November 22, 1937, there is nothing in the record to indicate from whom Pearson obtained the title to the property in question, and in that finding the court found that Pearson had acquired title through a bankruptcy sale made in the Federal Court for the Northern District of Illinois, Eastern Division, in a proceeding entitled, “John Bain, Inc.” The record further indicates that the instant foreclosure' proceeding was then lis pen-dens as to the person through whom Pearson derived title, at the time the receiver was appointed.

In Weber v. Kemper, 320 Ill. 11, the Supreme Court held that:

“The rule in regard to lis pendens is, if a party buys property which is the subject of litigation from a party to the action after the process has been served and while the action is pending, he will be bound by whatever decree may be finally entered in the suit in regard to the property. By purchasing pendente lite he makes himself a party to the suit although he is not a party of record and his interests are represented by the party from whom he purchased, in the litigation. (Loomis v. Riley, 24 Ill. 307; Jackson v. Warren, 32 id. 331; Norris v. Ile, 152 id. 190); Moore v. Jenks, 173 id. 157.) He has a right to appear in the litigation and defend his interests in the name of the party from whom he purchased, and it is not necessary that he be made a party to the bill in order to make his defense. (Scott v. Milliken, 60 Ill. 108.) He cannot on his own motion be made a party to the record, (Lunt v. Stephens, 75 Ill. 507.) If he desires to become a party to the record he must. do so by filing a supplemental bill, but he cannot, by petition, pray to. be admitted to take part as a party, defendant. (Lunt v. Stephens, supra.)

Having appeared, and having had a hearing as to all the matters of which he complains in this appeal, he cannot now complain that he had no hearing, or that he suffered through lack of notice. Also, by appearing in the case as he did, he waived any question as to whether or not he received notice of the application for the appointment of the receiver.

In Kelly v. Brown, 310 Ill. 319, the Supreme Court said: “No limited appearance is required to raise the objection that the court has no jurisdiction of the subject matter, but if a party desires to object to the jurisdiction of his person he must limit his appearance alone to that purpose, for if he appears for another purpose he waives the objection to jurisdiction of his person. In Mitchell v. Jacobs, 17 Ill. 235, the court held that when a party appears for any purpose whatever except to object to the process or service he waives all objections thereto, although the process may be void or there may have been no service. In that case the party objecting had previously consented to a continuance of the case and the court held that he thereby submitted himself to the jurisdiction of the court, citing Easton v. Altum, 1 Scam. 250, where the same rule was announced. In Louisville and Nashville Railroad Co. v. Industrial Board, 282 Ill. 136, the court held a special appearance must be confined to a denial of jurisdiction, and that an appearance for any other purpose than to object to the jurisdiction is general. In that case th,e court quoted with approval 4 Corpus Juris, 1316, that ‘any act by the defendant which recognizes the jurisdiction of the court amounts to a general appearance.’ ” We conclude that the point made that the receiver was appointed without notice to Pearson, is without merit.

In the decree of foreclosure hereinbefore referred to, the court had jurisdiction of John Bain, Inc., through whom Pearson is shown by the order of the court to have taken title, and it is shown that the court by its decree, in terms, retained jurisdiction to appoint a receiver under certain circumstances mentioned, and in case a certain financial condition should be found to exist. The financial record of the property, as shown by the record here, indicates that at the time the receiver was appointed, such a situation had been reached.

Pearson indicated that he acquiesced in this last statement when he offered to operate the property involved, by posting a good and sufficient surety bond, as holder of the legal title, upon such terms as the court might require, and to account for the rentals received from the property under the direction of the court, without compensation.

Plaintiff has moved to dismiss this appeal for the reason that there is no evidence in the record to show that the Chicago Lawn State Bank, as trustee, through whom Pearson claims to have derived title, and through whom he prosecutes this appeal, was ever the owner of the premises, or that Pearson received title through it. In his reply brief, Pearson admits that it is true, that the record does not show that the Chicago Lawn State Bank was ever the owner of the property, and has moved this court for leave to offer evidence as to this fact, here. In view of the entire situation, and the state of the record, we are of the opinion that if further evidence is to be received, it should be in the trial court, and not here, and as Pearson has, in effect, confessed error in this regard, we are of the opinion that the appeal should be dismissed. It is, therefore, the order of the court that the appeal herein be dismissed.

Appeal dismissed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    George R. Fisher for use of Lucille Kiniry, Appellant, v. Associated Underwriters, Inc., Appellee.
    Gen. No. 39,330.
    Opinion filed March 16, 1938.
    Miller, Gorham, Wales & Adams, of Chicago, for appellant; Herbert C. DeYoung, Charles F. White and Egbert E. English, all of Chicago, of counsel.
    Anson H. Brown, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in a garnishment proceeding in the superior court, wherein the court at the conclusion of all the evidence instructed the jury to render a verdict for defendant, upon which verdict a judgment was entered with costs against the plaintiff. A motion for a new trial was overruled.

The garnishment proceedings were based on a judgment secured by Lucille Kiniry against George R. Fisher in the amount of $10,000.

Plaintiff’s theory of the case is that she sustained serious injuries in an automobile accident which occurred on August 6,1933, near Schneider, Indiana, and that Fisher was liable for the damages as shown by the judgment in the original suit. He allegedly carried a policy of liability insurance on his automobile with the garnishees Chicago Lloyds and that the proceeds of such policy should be applied toward the payment of such judgment.

The theory of the garnishee is that there had been a cancellation of the policy in question prior to the date of the accident out of which the suits arose.

The evidence is undisputed that the policy of automobile liability insurance was issued to the defendant George R. Fisher in Chicago, Illinois; that the period covered by said insurance by its terms began March 13, 1933 and extended to March 13, "1934; that the policy was delivered to him by one Bernard L. Unger, agent of defendant. It is also undisputed as to the place where the accident occurred and that plaintiff and her husband were injured; that suit thereon was commenced and judgment entered in favor of plaintiff for $10,000 and judgment entered in favor of plaintiff’s husband in the sum of $15,000.

Bernard L. Unger testified that he was employed by the Chicago Lloyds selling insurance during the summer of 1932 and left their employ in the fall of 1933; that Chicago Lloyds is a trade name that the defendants Associated Underwriters use; that he sold the insurance policy involved in this case as an agent for Chicago Lloyds and collected payments or premiums for them; that he knew George B. Fisher as a prospect and sold him the policy in March 1933; that he did not receive any payment of premium at that time; that he handed in the application to Chicago Lloyds and got the policy of insurance from them on that application and sent it by mail to Fisher and never got it back.

Continuing, Unger testified that he got $10 from Mr. Fisher on July 24, 1933, to apply on the premium on the policy; that when Mr. Fisher got back from his vacation he told Unger he had had an accident and wanted to know if the company would take care of his loss; that he was the only man from Chicago Lloyds that Fisher ever dealt with; that the last time he saw him was when he told him of the accident. Over objection Unger further testified that he tried to give the money that Fisher had given him to the Chicago Lloyds but that they would not accept it; that he then took the money to Mandel Brothers the following day and tried to contact Mr. Fisher who worked there, but he was out, so he put the $10 in a note and explained that it was not enough to take care of the earned premium and that if he, Fisher, wanted to pay the premium to get in touch with him; that he put the money in an envelope at Mandel Brothers window trimming department. There is no evidence that Fisher ever received this money back.

The evidence further shows according to the books of the company, that the policy was issued not as a cash sale but on terms of 30, 60 or 90 days and the witnesses testified that the premiums were to be paid on the basis of one-third in 30 days, one-third in 60 days and one-third in 90 days.

Cyril A: Farwell, the assistant secretary of the Associated Underwriters testified that one of his duties was to supervise agents, salesmen and producers ;. that he hired Mr. Unger sometime in 1933; that agents may have collected premiums at times from assureds; that the agents solicited insurance and gave to the prospective assureds premiums terms; that the agents delivered policies without having the money paid over for the premium; that in many instances the policies were mailed direct to the assureds and occasionally the courtesy was extended to having the agents deliver the policies to the assureds.

It further appears from the evidence that on July 11, 1933, the garnishee wrote to Fisher, the assured, as follows:

“You are Hereby Notified, That payment has not been made at this OFFICE of the premium $36.00 for Policy No. 72229, of Chicago Lloyds, Dated March 13, 1933, for 1 yr Covering 1932 Buiclc Coupe and unless Premium thereon shall be paid to us on or before 12 o’clock noon, of July 17, 1933, we shall cancel the Insurance under said Policy upon our books, for Nonpayment of Premium, without further notice and terminate our liability thereunder from that date. You will be held liable for the pro rata earned Premium thereon.”

The evidence further shows that thereafter on September 26, 1933, the claim agent wrote Fisher a letter in which he stated that the policy No. 72229 had been canceled as of July 17, 1933, for nonpayment of premium and that Chicago Lloyds were entitled to the earned premium of $12.45 for the time this policy was in force. It further appears that when the so-called cancellation on the books took place as of July 17,1933, the policy in fact was not physically canceled on the books until July 31,1933; that the cancellation was entered on July 31, 1933, but dated back to July 17, 1933.

The main defense of the garnishee in this case appears to be the cancellation of the policy. The clause of the insurance policy regarding cancellation, reads as follows:

“This Policy shall be cancelled at any time on the written request of the named Assured, or by the Underwriters through Associated Underwriters, Inc., their Attorney-in-Fact, upon giving five days’ written notice of such cancellation to the named Assured. . . . Notice of cancellation by the Underwriters shall be sufficient when mailed to the address of the named Assured stated in the policy schedule. . . .”

The letter to Fisher, dated July 11,1933, upon which the garnishee relies as being a cancellation of the policy, and which we have quoted above, sets forth that some future action by the company would be taken. It is quite evident that the company did not intend to cancel the policy if the premium was paid within the time specified, but if it was not paid, the company would then take further steps to effect a cancellation “on the books” for the letter says: “. . . unless Premium thereon shall be paid to us on or before 12 o’clock noon, of July 17, 1933, we shall cancel the Insurance under said Policy upon our books. . . . ” There is no evidence in the record that any future action was taken, of which Fisher had notice except the letter of the claim agent dated September 26, 1933. A case somewhat similar to this was before this court, being McNellis v. Aetna Ins. Co., 176 Ill. App. 575, wherein the court said: “. . . the notice which Scott says he served upon the plaintiff does not purport to cancel the policy. It merely states that unless the premium be paid by a certain date, ‘We shall cancel the policy. ’ Such a notice is not, in itself, a cancellation (Newark Fire Ins. Co. v. Sammons, 110 Ill. 166). ...”

In Newark Fire Ins. Co. v. Sammons, 110 Ill. 166, the court in affirming a judgment against the company, said: “As to the other instruction, it only declares that a mere notice of an intention to cancel a policy of insurance, and nothing more, is not a cancellation of a policy. This could not mislead, and under the testimony before the jury it was proper. The intention of the insurer to cancel a policy could surely have no effect upon the contract of insurance until carried into execution,- — and such is the doctrine of the instructions. ’ ’

It is a doctrine in this State that where a question arises as to the legal construction to be placed upon the language of an insurance policy, the same should be strictly construed in favor of the insured. This doctrine would be particularly applicable in a case such as the one before us where it relates to the company having the right of cancellation, as forfeitures are not favored in the law.

As was said in Budelman v. American Ins. Co., 297 Ill. 222, at page 227: “It is a well recognized rule of construction that an insurance contract will be construed in favor of the insured, . . . and the courts will not forfeit a policy except where a clear right of forfeiture is shown.”

In addition to this, as before stated, the evidence shows that the employee who was to have done the canceling of the policy on the books of the company, did not do so until July 31, 1933, but that she dated the cancellation as of the 17th. In the meantime, the evidence tends to show that $12, or some similar amount, had been paid to the agent Unger, whom the evidence shows had accepted payment on account of the premium, as had been his custom as well as the custom of other agents working- for the company. Therefore, there is a question as to whether or not the cancellation could be considered as effectuated.

It is contended by the garnishee that the agent Unger did not have any authority to represent the company in this respect. Whether he did or not was a question of fact. As was said in Phenix Ins. Co. v. Stocks, 149 Ill. 319, at page 335: “Persons dealing with an agent can not know, nor are they required to know, the limitations upon his power to represent his principal. The company is bound by the acts of its agent in the exercise of powers within the apparent scope of his authority, unless limitation upon such powers is brought to the notice of the assured. . . . Whether this agent was apparently clothed with authority to represent the company in the adjustment of this loss, or to accept service of the demand and notice for arbitration, under the conditions of the policy, was a question of fact, to be determined by the jury upon consideration of all the facts and circumstances proved.”

Whether or not Unger had authority in fact as agent for the garnishee and whether or not the acceptance by him of the money from Fisher (if there was such acceptance) was a waiver of what might be considered a breach of the contract, and whether or not insurer did not waive the breach of the contract by accepting payment of premiums, the Supreme Court said in the case of Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369, at page 371: “The question as to what facts are necessary to constitute a waiver is a question of law. The existence of such facts in a given case is a question of fact. The Appellate Court found that the right of the insurer to insist on the lapse of the policy for failure to pay the premium within the time required had been waived by its conduct. What that conduct was is a question of fact and is not open to review here, but it must be taken as established that the plaintiff in error had at previous times accepted payments on this policy after the thirty-one days of grace had expired.

As was said in the case of Shaw v. Fireman’s Ins. Co., 269 Ill. App. 83, at page 85: “There were sufficient facts in the proof, if true, to constitute a waiver on the part of the company of the above provision and the existence of such facts was a question for the jury.”

See also, Milwaukee Mechanics’ Ins. Co. v. Schallman, 188 Ill. 213.

There are questions of fact involved in this controversy which, of necessity as well as in harmony with the law in relation thereto, should have been submitted to the jury. This court, in following the Supreme Court in the rules.laid down as to when a case should be taken from a jury, has many times recited the rule. When motions are made at the close of all the evidence to instruct the jury for defendant, courts are not to concern themselves with the weight of the countervailing testimony and they should not weigh the same or consider whether the greater weight or preponderance of the evidence is on one side or the other, but they should take the evidence which is most favorable to the plaintiffs, together with all the legal inferences that may be drawn therefrom, and if it can be said that such evidence tends to prove the cause of the plaintiffs, then it is the duty of the trial courts to overrule such motions. To do otherwise would be to deny the right of trials by jury.

As the Supreme Court, said in Minnis v. Friend, 360 Ill. 328, 335:

“In passing upon a motion to direct a verdict the trial court is limited to determining whether there is or is not any evidence which tends to prove the facts alleged. When a jury is not waived the trial court has no power to determine the weight and preponderance of conflicting evidence introduced to establish or to disprove these facts, and the court is never authorized to take a case from the jury where to do so would involve the determination of the preponderance of the testimony. ’ ’

In the case of Kinsey v. Zimmerman, 329 Ill. 75, the court at page 79, said: “. . . and the trial judge is never authorized to take a case from the jury or direct a verdict for the plaintiff where to do so would involve the determination of the preponderance of the testimony, but that court is limited strictly to determining whether there is or is not any evidence legally tending to prove the fact alleged; and this is true even though it appears that the greater weight of the evidence may be on one side or the other; . . . ”

Whether or not Unger was an agent of the company, the extent of his authority and whether or not he bound the company by his actions, were all questions of fact and they should have been submitted to the jury.

On the question of the motion for a new trial, the same is not argued by the plaintiff although it is by the defendant. Defendant alleges that no proper effort was made to obtain Fisher as a witness at the trial nor was there any attempt made to take his deposition. Without going’ into the matter in detail, we think Fisher’s evidence was very necessary at the hearing and that every reasonable effort was made by plaintiff to secure Fisher’s presence or his deposition. We think the trial court could well have granted a new trial on the showing made as to the absence of the witness Fisher.

Other errors are assigned, but as this case must be retried, we do not think it necessary to discuss them at this time and, no doubt, the errors which were made at the former trial can be corrected when the case is tried again.

We are of the opinion that the trial court erred in instructing the jury to return a verdict for the defendant and for that and other reasons mentioned in this opinion, the judgment of the superior court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Hall, J., concur.


text:
    Abraham H. Ginsburg, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 39,689.

      Opinion filed March 16, 1938.
    Rehearing denied April 1, 1938.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Layin & Jaeee, of Chicago, for appellee; George S. Lavin and Ira S. Kolb, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This action was commenced on May 8,1935, for total and permanent disability payments under a life insuranee policy issued by the defendant, The Prudential Insurance Company of America, on the life of Abraham H. Ginsburg, plaintiff. A trial was had without a jury, resulting in a judgment on the finding in favor of plaintiff and against the defendant in the sum of $2,018.80, from which defendant brings this appeal:

An amended statement of claim was filed on December 4, 1936, in which the plaintiff alleges the issuance of the policy containing the total and permanent disability “riders” and that the defendant from May 18, 1934 until October 1, 1935, failed and refused to pay under said policy and that the sum of $1,650 has become due under the total and permanent disability provision ; that the plaintiff had paid premiums of $127.50 and $241.30 and was entitled to recover these premiums also.

The affidavit of merits filed to the amended statement of claim denied that there was liability for $1,650 and also denied the premium payments were voluntarily made and that the plaintiff was totally and permanently disabled.

Plaintiff’s theory of the case is that under the policy, proof of total disability for a period of 90 days raises the presumption of permanency within the meaning of the clause granting disability benefits, and upon receipt of proof thereof the insurer becomes obligated to make payments until the state of continuous total disability shall have terminated; that the total disability for this period confers upon the insured the absolute and indefeasible right to benefit until the period of total disability shall have ended.

Defendant’s theory of the case is that the benefits under the total and permanent disability provision of the policy are payable only if the plaintiff is totally and permanently disabled as therein provided and not if the disability is temporary; that there is no ambiguity in the policy and that the plaintiff is not entitled to recover the premiums paid which are voluntary pay- . ments; that it was error for the trial court to permit recovery for any amount alleged to be due after the date the suit was filed.

The evidence shows that the policy in this case was dated July 9, 1930 and was issued to Abraham Ginsburg for the sum of $10,000, payable upon receipt of proof of death; that the policy also contained what is known as “total and permanent disability riders” which provide for payments of $100 monthly and a waiver of premiums if the insured becomes totally and permanently disabled to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during- the remainder of his lifetime; that if proof submitted shall not be due proof of the permanency of such disability but shall be due proof that total disability as defined exists and has existed continuously during a period of not less than 90 consecutive days immediately preceding- receipt of such proof, that such disability shall be presumed to be permanent and the company , will grant the said benefits dating from the end of 90 days from the commencement of the period of total disability which has existed continuously to the date of such proof.

The policy further provides that notwithstanding the acceptance by the company of proof of total and permanent disability, or of proof of the duration of total disability for a period of 90 consecutive days, the insured, upon demand by the company from time to time, but not oftener than once a year after such disability has continued for two full years, for the- purpose of verifying that such disability is actually permanent and not temporary, shall furnish due proof that he actually continues in the state of disability defined above and that in case of failure to furnish such proof, no further monthly premiums shall be waived and no further payments made.

The evidence further shows that Abraham Ginsburg became ill on Decémber 1,1932; that between that date and December 12, 1932, the large toe on his right foot became swollen and on December 13,1932 an operation was performed; that subsequently, 13 additional operations were performed during the period of 11 weeks when he was in the hospital; that after leaving the hospital his leg* was kept bandaged and elevated and he remained at home using a wheel chair until about August, 1933; that he used crutches until January, 1934 and thereafter he used a cane; that during* the day he kept his foot elevated about 90 per cent of the time.

The evidence further shows that Ginsburg* had been employed by his father in a retail store selling men’s furnishings; that at the time of the trial he was working in an office furniture store and managing a men’s furnishing* store in which he was interested, known as Ginsburg, Incorporated.

The evidence further shows that plaintiff was treated by a Dr. Gaynes from September, 1934 until April, 1935, on an average of three times weekly, during* which time the wound remained open and the limb swollen; that in April, 1935, he returned to work for approximately 4 days for a period of from 3 to 4 hours daily; that the wound became larger and the swelling increased and he was taken to the Michael Reese Hospital and two skin graft operations were performed on his right foot and he left the hospital, in May or June of 1935; that on September 13, 1935, he saw Dr. Levinthal, at which time, the wound was almost closed, although the leg remained swollen; that he started to work on October 1,1935, for a few hours each day until January 1, 1936, at which time he commenced to work regularly.

Dr. Daniel H. Levinthal, a witness on behalf of plaintiff, testified that on June 9,1934, he examined plaintiff and found that he had lymphedema of the lower right extremity due to impaired circulation and multiple scars, particularly on the outer aspect of the dorsum of the right foot; that he prescribed rest and elevation during the greater part of the day, with an occasional lowering of the limb; that he made another examination on October 1, 1934, and found a denuded area on the outer aspect of the dorsum of the right foot and again prescribed elevation of the limb during the greater part of the day; that on April 26,1935, he performed a pedicle skin graft which required that both of the patient’s limbs remain in a cast until May 13, 1935; that he examined the patient on September 13, 1935, and finding the wound healed, referred him back to his attending physician for the healing of the wound did not mean that it was covered with sldn.

In answer to a hypothetical question, the doctor testified that the hypothetical man was totally disabled from December 1, 1932 to October 1, 1935, and stated that in his opinion the man was permanently disabled to the time that he returned to work.

Dr. Leonard Gaynes, a witness on behalf of plaintiff, testified that he was Ginsburg’s attending physician during his illness and treated him on an average of three times a week from December 1,1932 to October 1, 1935; that before September 13,1935, the ulcer was not completely healed and it was not until October 1, 1935, that he became completely healed; that until the second skin graft operation, it was his opinion that there was permanent and total disability and that until October 1, 1935, the patient was totally disabled.

Dr. A. B. King, called as a witness on behalf of defendant, testified that he examined the patient in Octoher, 1934, and found several pinhead size openings in the right foot from which there was a serious discharge ; that he decided that the patient was not totally and permanently disabled; that since 1927 he has had about one private patient daily and other than his examinations for insurance companies he has had no experience in orthopedic work.

Dr. F. Patrick Machler, another witness testifying on behalf of defendant, stated that he examined plaintiff on May 18,1934, and in his opinion the patient was totally and permanently disabled; that on September 28, 1934, he again examined Gfinsburg’s right foot and was of the opinion that the patient was not totally disabled on that day.

Dr. H. C. Lyman, testifying on behalf of the defendant stated in answer to a hypothetical question that in his opinion he would not consider the hypothetical man totally disabled.

The trial court held that since there was an ambiguity in the provisions of the policy, it should be construed most strictly against the insurance company. The court stated that the term “permanent” in the policy was not to be construed according to the ordinary dictionary meaning, but that the defendant company had undertaken in its own policy to define the meaning of the word; that for the purpose of the policy, total disability which continued for a period of 90 days was considered by the company to be permanent, entitling the insured to the benefits under the policy. The court further pointed out that under the policy it was not necessary for it to determine whether the disability was permanent, but rather whether the disability continued for more than 90 days; that the fact that the company had the right to make periodic examinations to determine if the disability had continued, satisfied the court that the policy did not contemplate the use of the word “permanent” in the ordinary accepted meaning of the word.

At the time of the trial plaintiff was 37 years of age. He was confined in the Michael Reese Hospital on or about May 8, 1935, where he had been operated upon by having skin grafted on his right foot on April 26,

1935. It is agreed that the plaintiff furnished due proof and the defendant made payments to him until May 18, 1934. The fact is not disputed by the defendant in its brief that the plaintiff furnished due proof of disability after May 18, 1934.

Defendant contends that plaintiff was never totally and permanently disabled because he started to work on October 1, 1935, for a few hours each day and resumed his permanent occupation on January 1, 1936, and that therefore he was not disabled on December 23, 1936, the date of the trial.

The policy in question provides as follows:

“Disability Before Age 60: Waiver of Premiums— Monthly Income to the Insured. — If the Insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium, on this Policy, while this Policy is in full forcé and effect and the Insured is less than sixty years of age, and before .any non-fórfeiture .provision shall become operative, \the Company, upon receipt of due proof of such disability, will grant 'the benefits hereinafter specified, dating from the commencement of such disability, dr if the proof submitted shall not be due proof of the permanency of such disability but shall be due proof that total disability as defined exists and has existed com tinuously during a period of not less than ninety, consecutive days immediately preceding receipt of such proof, such disability shall be presumed to be permanent and the Company toill grant the said benefits dating from the end of ninety days from the commencement of the period of total disability which has existed continuously to the date of such proof.

“(1) Waiver of Premiums. — The Company will waive the payment of any premium or premiums the due date of which, as specified on the first page hereof, shall occur after the disability benefits shall accrue as above specified.

“(2) Monthly Income to the Insured. — The Company will, in addition to waiving premiums, pay to the Insured the Monthly Income specified on the first page hereof under the heading* ‘ Total and Permanent Disability Benefits’ beginning from the date when the disability benefits shall accrue as above specified and during the continuance of such disability. Interest due on any indebtedness under this Policy may be deducted from such monthly income payments. . . .

“Proof of Continuance of Disability. — Notwithstanding the acceptance by the Company of proof of total and permanent disability, or of proof of the duration of total disability for a period of ninety consecutive days, the Insured, upon demand by the Company from time to time, but not oftener than once a year after such disability has continued for two full years, for the purpose of verifying that such disability is actually permanent and not temporary, shall furnish due proof that he (or she) actually continues in the state of disability defined above. In case of failure to furnish such proof, no further premiums shall be waived and no further monthly payments shall be made on account of such disability, but any insurance then remaining under this Policy shall be continued in force subject to the payment by the Insured of any premium or premiums, based on such insurance, the due date of which premium or premiums, as specified on the first page hereof, shall occur thereafter.”

Plaintiff contends that so long as he is totally and permanently disabled, under the terms of the policy, defendant is under an obligation to pay the plaintiff the benefits accruing thereunder.

In Losnecki v. Mutual Life Ins. Co., 106 Pa. Super. Ct. 259, 161 Atl. 434, in discussing what is meant by “totally and permanently” disabled, it was said: “The meaning of the phrase ‘totally and permanently disabled by bodily injury or disease, so that he is, and will be permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation, ’ as used in these policies, is not governed, or, indeed, even helped very much, by reference to dictionary definitions of the word ‘permanently,’ or its use in workmen’s compensation statutes. It is clear from other parts of the policy contracts that the word ‘permanently’ is not used in its extreme sense of absolute perpetuity, ‘everlasting,’ ‘lifelong,’ ‘unchangeable, ’ ‘unending,’ etc., but rather is used relatively in contradistinction from ‘temporary’ or ‘transient.’ This is apparent from the construction placed on the clause in other parts of the policies. For example, the policy provides that although the proof of total and permanent disability may have been accepted by the company as satisfactory, the insured shall on demand, but not oftener than once a year, furnish to the company due proof of the continuance of such disability. . . .” See also Plummer v. Metropolitan Life Ins. Co., 132 Me. 220, 169 Atl. 302, 305; Maze v. Equitable Life Ins. Co. of Iowa, 188 Minn. 139, 246 N. W. 737, 738; Jefferson Standard Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S. W. (2d) 20, 24.

In reply to this defendant alleges that the plaintiff was never totally and permanently disabled because plaintiff started to work on October 1, 1935, for a few hours each day and resumed his permanent occupation on January 1, 1936, and that plaintiff was not, therefore, disabled on December 23, 1936, the date of the trial.

In the case of Maze v. Equitable Life Ins. Co. of Iowa, 188 Minn. 139, 246 N. W. 737, heretofore cited, the court said: “Subsequent recovery, even before trial, does not destroy the insured’s cause of action, though it terminates the accrual of subsequent installment payments thereunder.”

'We do not believe the interpretation or construction of the words, “permanent or total disability” means that-in order to recover the insured must in the first instance prove that forever thereafter he is to be totally and permanently disabled. In our opinion that would be construing the language too narrowly, as we believe it was intended that it should be for the insured’s disability so long- as that condition existed, leaving- it as the policy states to the future to determine whether the disability is permanent or not, the company to gain the benefit in the future, if recovery is had, thereby destroying the presumption of permanency which accrued according to the policy after the period of 90 days.

In the case of Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App. 277, 197 N. E. 923, the court in following the doctrine of the Mase case, supra, said:

“When Miss Gierwick furnished evidence of her total disability for sixty days and adduced proof raising a reasonable presumption that her disability would continue for an indefinite time, she then became entitled to receive her income benefits and waiver of premiums during the continuance of her disability.

“The plaintiff in error company cannot evade its contractual obligations by shielding itself behind a fabricated smoke screen of untenable conclusions, based upon ambiguous verbiage, prepared and selected by the company itself. The experts and legal advisers of the plaintiff in error drew these policies with great care and deliberation. The company alone is responsible for the ambiguities and uncertainties therein contained. It would be unjust to allow this insurance company to profit therefrom, at the expense of the policyholder, who had paid out hard earned cash in an honest effort to protect herself and her dependents from unseen contingencies, caused by accident or illness. . . .

“ ‘To give said terms the strict or literal interpretation stated would be to convict a reputable insurance company of having put out among our people, and having collected from them premiums on, a policy provision which in effect would be scarcely more than a cheat, a pretense, and a fraud.’

‘ ‘ Certainly that could not have been intended. ’ ’

Defendant contends that this construction ignores the requirement that the insured must be totally and permanently disabled to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his lifetime.

We do not think it is necessary to ignore this latter provision, although when considered with the other provisions thereoif, a different situation is presented. The provision in the policy to which we refer reads as follows: “The company may at any time and from

time to time, but not oftener than once a year, demand due proof of such continued disability, and upon failure to furnish such proof, or if it appears that the insured is no longer wholly disabled as aforesaid, no further premiums shall be waived nor income payments made.”

Manifestly, from the language just quoted, the defendant insurance company did not contemplate or intend that the word “permanently” should be construed as meaning “forever.” They made provision that they should be advised and could demand due proof as to whether or not the disability was a continuing one and, as before stated, any recovery of the insured inured to its benefit, because if the insured regained sufficiently to engage in any gainful occupation, the insurance company would be relieved of making further benefit payments. No claim is made that they were not advised of plaintiff’s condition of health during all that time.

These provisions are rather ambiguous and we are of the opinion the trial court did right in considering them as the law requires — favorably to the insured. The plaintiff is asking to recover only for the time he was disabled, which disability ended October 1, 1935, when he started to work a few hours each day, and at which time it is conceded that he had recovered sufficiently so that his complete disability no longer existed. Although there was a dispute between the doctors as to his disability, we think the evidence clearly shows that plaintiff’s disability continued until October 1, 1935.

Plaintiff’s exhibit 7, is a letter dated June 1, 1933, from the Prudential Insurance Company of America, written to Mr. A. P. Drapekin in regard to plaintiff. This letter clearly shows that defendant did put the construction upon the policy which plaintiff has heretofore maintained and with which we agree. That letter reads in part as follows:

“In connection with the above numbered policy we enclose herewith check to insured’s order for $100.60 in payment of June 1,1933 disability claim.

“Check is being sent on the understanding that insured is still totally and permanently disabled, and if there has been any change in his condition we should be notified immediately with full particulars.”

Defendant’s position at this time is inconsistent with the position taken by the defendant when the above letter was written and defendant’s construction of the policy at that time. We think the above letter sustains what we have said in construing the terms of the policy.

It is next contended by the defendant that the premium payments made during the period of disability were paid voluntarily and are not recoverable.

On August 4, 1934, the manager of the defendant company wrote the following letter to the plaintiff:

“In connection with above numbered policy, we call particular attention to the fact it will be necessary for Mr. Ginsburg to pay the premium which was due July 9th, 1934, and in connection with which grace expires August 9th, 1934, next week Thursday, as policy has been restored to premium paying basis.

“The annual premium due July 9th, 1934, is $152.20 less dividend $24.70, or net of $127.50.

“When July 9th, 1934 premium is paid and Mr. Ginsburg’s disability claim is further considered and further action is taken by the Company, then the question of a return of the July 9th, 1934, premium will be given consideration.”

This premium and subsequent ones were paid under protest. It must be remembered that in this case, according to the terms of the policy, the defendant agreed to waive- the premiums occurring after the disability benefits accrued.

In Wenstrom v. Aetna Life Ins. Co., 215 N. W. 193, the court in a case somewhat similar, said:

“If the insured was entitled to his indemnity, there was no premium due in 1925, and yet, since the company refused to allow the claim of indemnity, the insured could not afford to take chances in not paying the premium and losing his policy in case he was not entitled to the indemnity. Since, under the terms of the policy, the appellant was not entitled to the premium in 1925, the insured is entitled to recover the premium paid. ’ ’

In. Still v. Equitable Life Assur. Soc., 165 Tenn. 224, 54 S. W. (2) 947, the court said:

“ . . . The compulsion under which the payments were made is apparent to anyone who appreciates the values of a life insurance contract. The complainant was so situated that, if he failed to establish the permanency of his disability, he could not hope to obtain other insurance. Decision could not be postponed and time was of the essence of the matter. The payments were necessary to preserve valuable rights, and, under the authorities cited we hold they were not voluntary. ’ ’

So, in this case, the plaintiff has valuable rights under the terms of the insurance policy, which he probably could not replace on account of his disability and where demand was made upon him by the company and he paid the premiums under protest, awaiting a future determination as to whether or not his disability was such that, by the terms of the policy and under the law, he would be entitled to receive compensation, we think the evidence clearly shows that such payments should be considered as waived by said defendant and should on account of such disability be recovered in this suit by plaintiff.

It is next contended, by defendant that the judgment is for too large an amount. It appears that the. original statement of claim was filed May 8,1935, at which time plaintiff claimed the sum of $1,227.50 was due.and payable. Thereafter on December 4, 1936,, an amended statement of claim was filed wherein it was claimed that the sum of $2,018.80 was due, said amount being for monthly payments due until October 1,1935, as well as yearly premiums that were subsequently paid in order to keep the policy in force. The trial was had commencing on December 23, 1936. This presents the question:

May a judgment be entered against defendant for the amount of insurance instalments maturing and due after the action was instituted?

It is contended by plaintiff that where an amendment is filed to the declaration, setting forth the amount which is due arising out of the same transaction and that issue is made up before the trial, evidence may be given and judgment entered for the amount due at the time of the hearing. This is true in some actions such as suits on notes where the interest is computed to the date of the judgment, also in suits for rent where the accrual of rent is sometimes entered to the date of judgment and in damage suits it is proper to allege and recover for pain and suffering endured, not only up until the time of the trial but in the future. If this suit had come to us from a court other than the municipal court we would.be inclined to follow the logic of the statute as set forth in the Practice Act, ch. 110, par. 163, sec. 39 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 104.039], which reads in part as follows:

“Subject to rules, supplemental pleadings, setting up matters which have arisen after the original pleadings were filed, may be filed within a reasonable time by either party by leave of court and upon terms. ...”

Amended pleadings permitted under this rule'would, of. course, Call for evidence to support such pleadings and a judgment entered in harmony therewith. This case comes to us from the municipal court and there is no rule of the municipal court which we have been able to discover which governs this situation.

In the case of Hamlin, Hale & Co. v. Race, 78 Ill. 422, the court said:

“We had supposed no rule was more inflexible or better established than that a plaintiff can not recover for money not due at the institution of the suit. . . . If this rule could be seriously questioned, other cases could be referred to as establishing the rule; but, to our minds, it requires no authority, as it is based upon principles obviously just.

“If, then, a party can not sue for and recover a debt or claim before it is due, why should he do, indirectly, the same thing by suing for a small part when due, and recovering a greater and more substantial part accruing after the suit has been brought? The law never permits that to be done indirectly which it prohibits from being done directly. To permit the recovery of the sums falling due after suit brought, would be an evasion of the rule that the cause of action must be complete when suit is brought. It would be without analogy to any rule of law which now occurs to us. . . . ”

Under the law as we find it, we do not believe under the facts here a recovery may be had other than the amount due and owing at the time of the commencement of the suit. The cause of action and amount due in this case depended upon the physical condition of the insured from day to day and, if the plaintiff had recovered his health sufficiently at any time, his cause of action must, necessarily, end. Therefore in the absence of any legislation, rules of court or decisions authorizing such procedure, we believe it is our duty to adhere to the logic and reasoning as set forth in the case of Hamlin, Hale & Co. v. Race, supra.

We are of the opinion that the trial court was correct in its finding as to the liability of the defendant, but the court should not have included payments which became due after the commencement of the suit. The amounts wrongfully included make a total of $716.30 and consists of the items for premiums paid August 8, 1935, of $241.30 and also disability payments from May 8, 1935 to October 1, 1935 at the rate of $100 a month. Said sum of $716.30 is therefore deducted from the judgment entered in the municipal court for the sum of $2,018.80, leaving a balance of $1,302.50 which is the correct amount due and owing to plaintiff from defendant up to the date of filing suit.

Other questions are raised as to the improper admission of evidence and a renewal of the motion by appellee to strike the appellants report of the proceedings. We do not believe any substantial error was committed in this regard.

Inasmuch as the amount of the judgment can be ascertained definitely and a jury trial was heretofore waived, there will be no need of remanding the cause and judgment is entered here.

For the reasons herein stated the judgment of the municipal court is reversed and judgment is entered here for the sum of $1,302.50.

Judgment reversed and judgment here for $1,302.50.

Hebel, P. J., and Hall, J., concur.