text:
    Bankers Life Company, Complainant Below, v. Mary B. Perkins, Defendant Below, Appellant, v. Condon Engineering Company et al., Appellees.
    Gen. No. 38,443.
    Opinion filed February 19, 1936.
    Earl J. Walker, of Chicago, for appellant.
    John E. Van Natta and John B. King, both of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal by Mary B. Perkins from a decree upon a bill of interpleader filed by the Bankers Life Company, a life insurance company, by which the proceeds of two assessment certificates were awarded to the Condon Engineering Company and the claim of Mary B. Perkins to said fund was denied.

It appears from the bill of complaint that the plaintiff, the Bankers Life Company (formerly Association), is a benevolent assessment insurance company incorporated under the statutes of Iowa relating to benevolent assessment insurance companies, with its principal place of business at Des Moines, Iowa. In 1904 one Charles P. Brevoort became a member, and two policies issued naming his sister, the defendant and appellant herein, as beneficiary in two certificates. The complaint alleges that “each of the said certificates was and is and the provisions thereof were and are subject to the laws of the State of Iowa applicable thereto and that by the express terms thereof the articles of incorporation and the by-laws of said plaintiff were expressly made a part of each of said certificates.” (Abst. 2.)

In 1931 the name of the beneficiary was changed by the member to read “Edward J. Condon, creditor as his interest may appear, balance to Mary B. Perkins.” A few weeks after the date of the above change of beneficiary, Edward J. Condon died and later in 1932, an alleged assignment was served on the company, purporting to transfer to the Condon Engineering Company all interest of the personal representative and heirs of Edward J. Condon. Thereafter in 1934, the member Charles P. Brevoort died, having made no change of beneficiaries after the death of Mr. Condon. There was a prayer of interpleader.

The answer and cross-petition of the Condon Engineering Company and Condon heirs alleged that Edward J. Condon in his lifetime had made loans to the member Brevoort and later in 1931, Brevoort being unable to keep up his assessment payments, the rights of the member had been assigned to Condon as security for past loans and future payments of assessments and that by virtue of such loans by Con-don and subsequent payments of assessments by these defendants they were entitled to the proceeds of the certificates.

The answer and cross complaint of Mary B. Perkins alleged that there were certain statutes of Iowa under which the Bankers Life Company was incorporated and under which it operated that became a part of its certificates by necessary implication; that such statute recited that no certificate shall be assigned; that any assignment shall be void; that the beneficiary may be changed at any time and no beneficiary shall have or obtain any vested right or interest in the certificate or benefits until such benefits shall become due and payable after the death of the insured; that the by-laws of the company stipulated that no beneficiary shall have or acquire any claims until after the death of the member; that the certificate issued herein stipulated in the event of the death of the beneficiary prior to the member or if no beneficiary was named, the benefits were to be payable to the estate of the member; that Mary B. Perkins was named as beneficiary and was the sole beneficiary surviving the member; that the certificate provided that it was issued subject to the by-laws and constitution of the company; and that death benefits were levied and paid after a member had died and in accordance with the above constitution, by-laws, statutes and provisions of the certificates, which barred any interest to other defendants herein who were not named in the certificates and had no rights therein.

The trial court over objection of Mary B. Perkins admitted in evidence an assignment of the heirs of Edward J. Condon of all their right in the certificates to the Condon Engineering Company, which was executed before the member died. Over like objections the court admitted evidence of loans by Edward J. Condon to Charles P. Brevoort and checks and receipts for payment made by various Condon heirs to the Bankers Life Company, after the death of Condon and before the death of the member.

A decree of interpleader was entered in the case and plaintiff dismissed out of the case with its costs.

The question to be determined is as to who is entitled to the proceeds of the policy amounting to upwards of some $4,000 now in the hands of the clerk of the court.

The trial court decreed that the money should be paid to the Condon Engineering Company, from which order this appeal was perfected.

The facts in this case, about which there seems to be no dispute, are substantially as follows:

In 1925, Charles P. Brevoort was insured under two certificates of $2,000 each with the Bankers Life Co. of Des Moines, Iowa, a mutual concern. These policies were payable to Mary B. Perkins, his sister, as beneficiary. In 1925, Mr. Brevoort borrowed $2,500 from the claimant, E. J. Condon, for which he gave his note.

This note was signed by Brevoort and also by the claimant herein, Mary B. Perkins. Later Condon loaned Mr. Brevoort the following sums, for which he took notes: $200; $72; $90; $85.50 and $100, making a total loan of $3,047.50, up to August 4, 1931, for which he took notes signed by Brevoort. All the notes bear interest from that date at the rate of six per cent.

The latter part of 1931, Mr. Brevoort asked Mr. Condon to advance him more moneys, which Mr. Con-don refused to do, unless he had security. Mr. Brevoort then went to the office of Mr. Condon with the two certificates in the Bankers Life and told Mr. Condon that he would assign them to him, to secure what he owed him, if he would advance the money to pay the premiums necessary to keep such certificates in force until his death. This Mr. Condon agreed to do.

After several conferences with Mr. Condon and some correspondence with the Bankers Life Company, and at the latter’s suggestion and by agreement of Mary B. Perkins, the beneficiary was changed about August 1, 1931 to “E. J. Condon, creditor, as his interest may appear, balance to Mary B. Perkins, sister.” The policies were delivered to Condon and remained in his possession up to the time of his death and then passed into the hands of Ms administratrix and finally to the Condon Engineering Co. under proper assignments. The assignments are in evidence and uncontested. All payments of premiums after the assignments were made regularly by Mr. Condon’s administratrix or the Condon Engineering Co. until the death of Mr. Brevoort, making a total of $1,381.50.

The amounts advanced by E. J. Condon to Mr., Brevoort in his lifetime and the payments made on premiums since, total $5,429.00, independent of interest charges. ,

After the death of Brevoort in 1934, proof of death was made to the insurance company by the Condon Engineering Co. and the amount of the policies tendered into this court on the bill of interpleader was $3,904.50 now in the hands of the clerk.

At the time of the death of Brevoort, Mary B. Perkins was living.

It is contended on behalf of the plaintiff Perldns that because of the provisions of the statutes of Iowa, preventing a beneficiary from having a vested interest in the death benefits to be payable under said policy until after the death of the insured, prevents the,defendant Condon Engineering Co. or the heirs of Con-don from recovering anything and that she should receive the entire amount. The section of the statute upon which plaintiff Perkins relies, is Code of Iowa 1931, sec. 8694, and reads as follows:

“8694. Insurable Age — Beneficiary and change thereof — Assignment. No association organized or operating under this chapter shall issue a certificate of membership to any person under fifteen or over sixty-five years of age, or unless the beneficiary named in the certificate is the husband, wife, relative, legal representative, heir, creditor or legatee of the insured member nor shall any such certificate be assigned. Any certificate issued or assignment made in violation of this section shall be void. The beneficiary named in the certificate may be changed at any time at the pleasure of the assured, as may be provided for in the articles or by-laws, but no certificate issued for the benefit of a wife or children shall be thus changed so as to become payable to the creditors; provided that the foregoing provisions of this section shall not be applicable except as to certificates issued prior to July 4, 1923, to life associations organized and operating under this, chapter-issuing life insurance policies or certificates of membership, and any member- or policyholder in any such life association shall have the right to designate his beneficiary, and unless the policy is issued without the right of revocation, shall have the right to change the beneficiary in the manner authorized by the rules, laws, and regulations of the association, or as may be provided in the policy contract; and no beneficiary under any policy shall have or obtain any vested right or interest in the death benefits to be payable under said policy, until such benefits shall become due and payable after the death of the insured. (C97, § 1789; C24, 27 § 8694.)”

The part plaintiff particularly relies upon is: “ . . . any member or policyholder in any such life association shall have the right to designate his beneficiary, and unless'the policy is issued without the right of revocation, shall have the right to change the beneficiary in the manner authorised by the rules, laws, and regulations of the association, or as may be provided in the policy contract; and no beneficiary under any policy shall have or obtain any vested right or interest in the death benefits to be payable under said policy, until such benefits shall become due and payable after the death of the insured.”

It will be seen by reading this statute that creditors are amongst the class who are eligible to be named as beneficiaries of the policy, such as was done in this case. It will also be noted that the statute further provides that the right of the insured to change the beneficiary is qualified by the expression, “unless the policy is issued without the right of revocation. ’ ’ Does this section of the statute mean that a creditor having-advanced money to the insured, as in this case, and having been named a beneficiary and the policy having been delivered to him as security, that the insured then has a right to change the beneficiary and eliminate and destroy all the security and interest of the creditor in the said policy? We do not believe that this was the intention of the legislature. We believe that when a creditor is named as a beneficiary, with the consent of the company, it is the intention of the legislature that this policy should be protected by the clause in the statute “unless the policy is issued without the right of revocation” and the policy becomes a contract which is irrevocable without the consent of the interested party, to wit, the creditor. To do otherwise and to destroy the interest of the creditor was not the intention of the legislature even though they had the power.

We believe that the situation presented in this case calls for equitable relief. The contract having been executed in Illinois and the money having been de= posited in Illinois, we think the remedy as provided by the laws of this State are applicable. As was stated in Nell v. Nell, 234 Ill. App. 164, at page 167: “It is undoubtedly the general rule that during the lifetime of a member of a mutual benefit association the beneficiary named in the certificate of insurance does not have a vested, but only a contingent, right therein and that the member has a right without the consent of the beneficiary to change the beneficiary at his pleasure without the consent of the beneficiary. Columbian Circle v. Auslander, 302 Ill. 603; Delaney v. Delaney, 175 Ill. 187; Voigt v. Kersten, 164 Ill. 314; . . . There are however exceptions to the general rule.

“In discussing this rule in 19 R. C. L. 1294, it is said:

“ ‘One notable exception to this rule, however, is that where the existing beneficiary was designated as such in return for a valuable consideration, the member cannot change the designation thus made without the consent of such beneficiary. A clause in the charter of a benefit society, which attaches the beneficial interest in the insurance to membership in the society, and permits the members to change the beneficiary or payee of the insurance at any time without the latter’s consent, does not prevent the making of a contract by which a vested interest will pass to the designated beneficiary, which will compel the society to recognize him as the one entitled to the proceeds of the certificate. ’ ”

In the case of Supreme Council Royal Arcanum v. Tracy, 169 Ill. 123, it was said:

“While a certificate like the one in question is not assignable at law, all beneficial interest therein may be transferred in equity. Equitable rights may be acquired in a beneficial certificate which may be enforced in a court of equity. (Bispham’s Principles of Equity, chap. 8, 162-167.) ”

In 29 Cyc. 128, it is said:

“. . . equities may exist -in favor of the original beneficiary which will preclude the member from substituting a new beneficiary who has no equity superior to that of the person originally designated. . . . An equity in favor of the original beneficiary precluding the substitution of another in his place may rest on a contract between him and the member, based on a sufficient consideration, by which he is to receive the benefits. Thus if a member designates a beneficiary, or, haying designated a beneficiary, delivers the certificate to him, on an agreement that he shall receive the benefits, in consideration of past advances made by him, or present or future advances, or in consideration of his promise to pay dues and assessments, which promise is fulfilled, the member cannot thereafter substitute a different person as beneficiary.”

In Smith v. National Ben. Soc., 123 N. Y. 85, 25 N. E. 197, the Supreme Court of New York said:

“Where the right of the payee has no other foundation than the bare intent of the member, revocable at any moment, there can be no vested interest in the named beneficiary any more than in the legatee of a will before it takes effect.' But the statute does not prevent a contract between the parties by force of which a vested interest does pass.” •

• In Sipe v. Sipe, 102 Kan. 742, 173 Pac. 13, the Supreme Court of Kansas said:

“Where a husband agrees that if his wife will help to pay the assessments upon a certificate in a mutual benefit association in her favor he will not change the beneficiary,' and in consequence of such agreement she makes a part of the payments thereon, using for the purpose what are in fact the proceeds of her own labor outside of her ordinary household duties, she cannot be displaced as such beneficiary without her consent. Savage v. Modern Woodmen, 84 Kan. 63, 3d par. Syl., 113 Pac. 802.”

In the instant case Brevoort, the insured, owed some $4,000 to Edward J. Condon, evidenced by notes. Condon agreed to accept as security for the same two certificates of insurance upon Brevoort’s life and to advance further money and to pay the premiums thereon. The intervener, Mary B. Perkins, was present when this agreement was made and she signed one of the notes so secured to the extent of $2,500. Manifestly, Condon immediately obtained a vested interest under this agreement in the said policy to which the insurance company agreed by accepting the change and entering it on their books. When the intervener, Mary B. Perkins, made claim upon the insurance company for the face of the policy, the latter recognized the equity interest involved and filed a bill of inter-pleader in Illinois and deposited the money with the court to determine the equitable rights of both claimants. Both the claimants to the fund recognized the jurisdiction of the court to settle this dispute and inter-pleaded as to each other and set up their respective claims which made the issue between them.

We do not think that the claimant Perkins who had no vested rights in this policy should have an interest in the proceeds of the same superior to that of Condon and his heirs. She was present when the agreement was made and signed one of the notes secured by the policy. It was a valid agreement to which she, Con-don, Brevoort and the insurance company all agreed at the time it was executed, and it would now be inequitable not to carry out the intention of the parties and protect the equitable interest of the said Condon in the said fund. We are also of the opinion that the heirs succeeded to the rights of Condon.

In view of the fact that the heirs at law and next of kin of Edward J. Condon succeeded to his estate, we think the proceeds of these policies now in the hands of the court should have been given to his heirs and next of kin.

For the reasons given, the decree of the superior court is hereby reversed and the cause remanded with directions to amend said decree by ordering that said funds be given to the said heirs at law and next of kin of Edward J. Condon, deceased.

Decree reversed and cause remanded with directions.

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


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    In re Estate of Anna H. Wheeler, Deceased. The Congregation of the Fourth Presbyterian Church of Chicago, Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, Executor of the Last Will and Testament of Anna H. Wheeler, Deceased, Appellee.
    Gen. No. 38,444.

      Opinion filed March 2, 1936.

      Loesch, Scofield, Loesch & Burke, of Chicago, for appellant.
    McCulloch, McCulloch & McLaren, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

The Congregation of the Fourth Presbyterian Church of Chicago, Illinois, plaintiff, filed its claim in the probate court against the estate of Anna H. Wheeler, deceased, asserting that Mrs. Wheeler had in writing promised to leave to the church in her last will the sum of $25,000, which she failed to do, and asked for an allowance against the estate for this amount with interest from the date of the death of Mrs. Wheeler; the probate court refused to allow the claim and plaintiff appealed to the circuit court where after a hearing the claim was refused, and plaintiff appeals to this court. The executor of Mrs. Wheeeler’s estate defended upon the ground that the promise or pledge of Mrs. Wheeler is unenforceable, and also that her promise has been satisfied.

To understand the nature of the pledge it is necessary to narrate the circumstances at some length. Virtually all the essential facts were stipulated upon the hearing in the circuit court and there is no conflict in the evidence. Plaintiff is a religious corporation engaged solely in religious and charitable activities; it is governed by a board of trustees; its activities consist of religious services, contributions to the Presbyterian Church in the United States and in support of Christian missions and other charitable enterprises; the church building has been for many years and still is located near the central business district of Chicago, at Chestnut street and Michigan avenue. Dr. John Timothy Stone became the minister of the church in 1909 or 1910; in 1915 he presented to the board of trustees a report stating that the church faced the condition in future years of being nearer to the" downtown section of the city than it was at that time, and suggested that in order to do the work the church would always have to do, there should be an endowment fund; again in the fall of 1918 Dr. Stone, at a meeting of certain members of the church, informed them that because of the fact that the church building was located near the business center of the city, in a district which was changing in character from a residential district, it might be expected that the current contributions to the work of the church would tend to decline in future years, and therefore it was necessary for the church to establish a permanent endowment fund, and Dr. Stone proposed the creation of such a fund.

Pursuant to this suggestion, on December 30, 1918, the board of trustees at a meeting adopted the following resolution:

“Resolved: That there is hereby created a fund to be designated, ‘The Endowment Fund of the Fourth Presbyterian Church of Chicago, Illinois, ’ to be made up from donations, gifts, subscriptions and bequests therefor, the principal of which fund shall be held in trust in perpetuity and invested by the Treasurer under the direction of the Trustees; the income only of said Endowment Fund shall be expended in the support and maintenance in perpetuity of the worship, religious activities, and community services of said Church, together with the upkeep of all properties belonging to said Church.
“Resolved Further: That all gifts, bequests, subscriptions and donations to The Congregation of the Fourth Presbyterian Church of Chicago, Illinois, or to the Fourth Presbyterian-Church of Chicago, Illinois, for its Endowment Fund shall upon payment to the Treasurer be added to and become a part of said Endowment Fund to be held in trust in perpetuity for the purposes above stated;
“Resolved Further: That these resolutions shall be and are hereby made a covenant and agreement on the part of the Congregation of the Fourth Presbyterian Church of Chicago, Illinois, with every person who shall make a donation, gift, subscription or bequest or promise to make a gift, donation or bequest, to the Fourth Church for such Endowment Fund, that the principal of said ‘Fund’ shall be held in trust in perpetuity and the income only thereof be used by the Fourth Church for the purposes in these resolutions stated.”

Apparently the church then instituted a campaign to solicit pledges to the endowment fund. Mrs. Wheeler was a member of the church at that time and continued to be until her death. On February 1, 1919, she executed and delivered to the church the written pledge which is the basis of the claim filed against her estate in the probate court. This pledge is as follows:

“To The Congregation of the Fourth Presbyterian Church of Chicago, Illinois:
“I desire to have a part in making up the amount of the Endowment Fund for the Fourth Presbyterian Church, now being raised, and in consideration of the subscriptions, gifts, donations and bequests made by all other persons to such Endowment Fund, and in further consideration of the covenant on the part of the Church, duly expressed in resolutions of its Board of Trustees, that the principal of such Fund shall be held in trust in perpetuity, and the income only thereof to be expended in the support and maintenance in perpetuity of the worship, religious activities and community service of said Church, together with the upkeep of all properties belonging to said Church, I hereby promise to bequeath to you for said Endowment Fund, by my Last Will, the sum of 25,000 Dollars; any payments to said Fund which I may make in anticipation, in my lifetime, shall be credited by you upon said legacy and be abated therefrom in the event of my death.
“ (Signed) Mrs. Arthur D. Wheeler
Anna H. Wheeler.
“Dated Chicago, Feb. 1st, 1919.”

Many other persons made pledges to the endowment fund; one of such pledges is by Holmes Forsyth, dated January 10, 1922, which states that he promises to bequeath to the endowment fund by his last will $25,000, “in consideration of the subscriptions, gifts, donations and bequests made by all other persons to such Endowment Fund, and in further consideration of the covenant on the part of the Church, duly expressed in resolutions of its Board of Trustees, that the principal of such Fund shall be held in trust in perpetuity, and the income only thereof to be expended in the support and maintenance in perpetuity of the worship, religious activities and community service of said Church, together with the upkeep of all properties belonging to said Church. ’ ’ It was stipulated that at the time Mr. Forsyth made his pledge he knew of the pledge of Mrs. Wheeler and the other pledges to the fund by reason of his position as a trustee and custodian of the pledges held for the church by him, and that he would testify that the pledge of Mrs. Wheeler and the other pledges were part of the consideration for his pledge to the endowment fund; it was also stipulated that he had paid a considerable amount on account of the principal of this pledge, and also interest as provided for in the pledge. The other pledges to the endowment fund were substantially in the form of the pledge made by Mr. Forsyth.

Mrs. Wheeler died September 19, 1930, leaving a last will and testament with two codicils. Plaintiff asserts that the testatrix did not comply with her pledge to bequeath to the endowment fund the sum of $25,000. It will be noted that her pledge provided that any payments to the fund made during her lifetime should be credited to the legacy and abate therefrom in the event of her death. There was evidence as to numerous contributions made by her to the Fourth Presbyterian Church. Only one of these, however, was applied on account of her legacy. This contribution amounts to $500, which was applied to the endowment fund, thus reducing the amount promised by the leg*acy to $24,500.

Defendant says that the pledge is not enforceable as it is the law in Illinois that such pledges are not enforceable unless money has been expended or liability incurred by the donee in reliance on the pledge; that neither the church nor Mrs. Wheeler manifested an intention to contract and that the promises by the church do not constitute a consideration that is effective to make the pledge signed by Mrs. Wheeler an enforceable contract. To this plaintiff replies that the pledge is a contract, valid and enforceable.

There is a long list of cases decided in this State involving subscriptions or promises to pay to charities, but in none of these cases appears any promise by the donee or charity to do anything. In many of these cases the subscription was enforced. In Robertson v. March, 4 Ill. 198, the defendant subscribed to build a church, but there - was no promise or undertaking by the donee to build a church. However, the church was subsequently built and the subscription was enforced, on the ground that the donee, on the strength of the promise, had advanced money. In Johnston v. Ewing Female University, 35 Ill. 518, there was a subscription to be paid when a certain building should be erected, but there was no promise to construct the building, although subsequently erected. Many other cases might be cited involving similar facts. There is also a list of cases where the enforcement of the pledge has been denied. Such cases are Pratt v. Trustees of the Baptist Society, 93 Ill. 475, involving a subscription to enable a church to buy a bell, but there was no undertaking or promise on the part of the church to buy the bell, and the subscriber died before anything was done. Beach v. First Methodist Episcopal Church, 96 Ill. 177, involved a subscription to build a church, but no promise was made by the donee to build, nor anything done until after the subscriber became insane. In these cases and many others which might be cited there was no promise by the donee to do the thing for which the subscription was made. None of these cases involves facts like those now before us,, although the rule followed in the Robertson and Johnston cases (above) is applicable here.

In the instant case there were mutual promises, both on behalf of the church as well as on behalf of Mrs. Wheeler, the pledgor. The church agreed that the endowment fund should be made up from gifts and bequests, the principal to be held in trust in perpetuity and invested by the treasurer under the direction of the trustees; that the income, only, from the fund should be expended in the support and maintenance in perpetuity of the worship, religious activities and community services of the church, and that all donations to the endowment fund should become a part of the fund to be held in trust.in perpetuity for the purposes stated, and these agreements were “made a covenant and agreement on the part of the Congregation of the Fourth Presbyterian Church of. Chicago, Illinois, with every person who shall make a donation, gift, subscription or bequest or promise to make a gift . . . that the principal of said ‘Fund’ shall be held in trust in perpetuity and the income only thereof be used by the Fourth Church for the purposes in these resolutions stated.” The pledge made by Mrs. Wheeler stated that in consideration of the subscriptions, gifts, donations and bequests made by all other persons to the endowment fund, and “in further consideration of the covenant on the part of the church . . . that the principal of such fund shall be held in trust in perpetuity and the income only thereof” to be expended in “maintenance in perpetuity” of the religious activities of the church, she promised to bequeath to the church for the endowment fund the amount stated in her pledge. The resolution by the board of trustees, with reference to the endowment fund, may be considered as an offer to any subscribers thereto to hold all subscriptions upon the terms expressed in the resolution, which were explicitly stated to constitute a covenant and agreement with the person subscribing. It was an offer to anyone subscribing that his or her subscription would be held upon the terms stated. It follows, therefore, that when Mrs. Wheeler executed and delivered her pledge which specifically stated that it was in consideration of this covenant theretofore made, the contract was completed. The church had promised to do certain things provided anyone accepted said promise by contributing. Mrs. Wheeler accepted the offer and promise of the church and the church went ahead with its work, thus completing the contract.

Defendant says that this resolution was in fact only a declaration of trust. We cannot agree with this for the reason that the resolution is an agreement not with reference to any money then in the fund but with reference to funds which thereafter would create an endowment fund. Moreover, there was no trust res to be the subject matter of a declaration of trust at the time of the adoption of the resolutions. There was no endowment fund at that time, nor were there any promises to subscribe to the fund then in existence. There was therefore no subject matter on which the resolution could act as a declaration of trust.

It is apparent that both the church and Mrs. Wheeler had an intention to enter into a binding contract. It was not such an agreement as was considered in Beatty v. Western College, 177 Ill. 280, where it was said there was no bargain between the parties, although in that case the gift was supported on the ground of estoppel. Counsel for plaintiff pertinently observe that the covenant of the trustees and the pledge of Mrs. Wheeler were drawn in the light of the previous decisions of the Illinois courts denying enforcement of such pledges; that the resolution and pledge express the intention of the parties to make a binding contract in which each promise would be in consideration of and dependent on the other promise, and it is aptly suggested that if this has not been done it is impossible to make a charitable subscription a binding contract, which would put charitable organizations in a special disfavored class, contrary to the often repeated assertion of the courts that subscriptions to charities are favored. We should not readily declare such a contract to be unenforceable, with the serious consequences which would follow in invalidating such pledges upon which charitable organizations must rely. It is important in this connection to note that should the board of trustees fail in their obligations to hold and administer the endowment fund as they have agreed to do, the performance of this obligation may be compelled by the heirs of Mrs. Wheeler. (Green v. Old People’s Home of Chicago, 269 Ill. 134; Allegheny College v. National Chautauqua County Bank of Jamestown, 246 N. Y. 369.)

The defendant challenges the sufficiency of the consideration for the pledge given by Mrs. Wheeler. In this connection it is desirable to state the plan or setup of the church organization with reference to its finances. Two separate funds are administered by the church: one is the General Fund, for the maintenance of the church, administered by the board of trustees; the second is called the Session Fund, from which provision is made solely for benevolent and charitable purposes as distinguished from the maintenance of religious services; the Session Fund is administered by a separate board, called the Session; the incomes of the two funds are separately derived and separate audits are made at the end of each fiscal year, and separate budgets are also made; the income from the endowment fund goes solely to the General Fund.

Defendant’s argument seems to be that the promises of the church were for its own "benefit; that it promised to act as trustee solely for itself, and therefore a promise to accept a benefit for itself cannot be a sufficient consideration for Mrs. Wheeler’s promise to confer that benefit, citing Weger v. Robinson Nash Motor Co., 340 Ill. 81, Green v. Ashland Sixty-Third State Bank, 346 Ill. 174, and Morris v. Masters, 349 Ill. 455, where the general rule was stated that an act which is of benefit to one party or a disadvantage to another constitutes a sufficient consideration to support the contract. Defendant argues that the acts which the church promised to do were of no benefit to Mrs. Wheeler and of no detriment to the church.

Section 84 of the Restatement of Contracts says, in effect that consideration is not insufficient because of the fact that the party giving* the consideration is bound by a duty owed to the promisor or to the public if the act promised as consideration ‘ ‘ differs in any way from what was previously due.” By the offer by the church in the present case, new and substantial duties were undertaken. The church by its resolution promised that the principal of the endowment fund “shall be held in trust in perpetuity,” the income only to be expended in maintenance “in perpetuity” of the religious activities of the church, “together with the upkeep of all properties belonging to said church.” The church thus promised to assume the burden of trusteeship, with the necessary duties of management, selection and purchase of investments, and proper disbursement, and also assumed the obligation to use the income of the fund only for certain specified purposes, narrower than the purposes for which the church was organized. It should be noted that the income from this fund cannot be used for charitable purposes or as contributions to missions or to the National Presbyterian Organization. The pledgor might well have considered it as benefit to the members of the congregation, to her family and for the city in which she lived, and a sense of satisfaction to herself that there should be a perpetual maintenance of the cfiurch’s religious activities to which she had contributed. Where benefits are contemplated and result from the creation of a trust, such trust has been upheld. Burton v. Burton’s Trustee, 198 Ky. 429; Colburn v. Hedgdon, 241 Mass. 183; Fidelity Title & Trust Co., etc. v. Graham, 262 Pa. 273.

Defendant says that the promises made by the church with reference to the endowment fund are promises to do acts which the church was obligated to do by statute, quoting par. 173, chap. 32, on Corporations, which provides that trustees of religious corporations shall hold the real and personal property of the corporation, subject to the direction of the congregation, church or society, provided that all gifts and bequests “shall be appropriated and used as directed or intended by the person or persons making the same.” This can only mean a direction to the trustees how to administer the trust fund after it has been received and accepted by the church or; society. A church is not bound to accept a trusteeship.

It is a sufficient answer to the argument that the church was already obligated to previous pledgors to perform the acts stated in its resolutions, to note that the record shows that the resolutions of the board of trustees were passed December 30, 1918, and the first pledge made thereafter was that of Mrs. Wheeler, so that when this was made the offer contained in the resolutions had not been accepted by any other person. However, the offer contained in the resolution is only to such persons who shall make subscriptions, and the covenant of the board of trustees and Mrs. Wheeler’s pledge constituted a contract for the benefit of third persons, as far as the church’s promise is concerned.

The undertaking to carry on the work of the church in perpetuity was a sufficient consideration for the pledge. The wisdom and foresight of Dr. Stone and the trustees in establishing a permanent endowment fund is shown by the fact that although the church membership has made a substantial increase in numbers between the years 1918 and 1933, the income from current contributions during the same period showed a substantial reduction, while the income of the endowment fund over the same period showed a marked increase. While the income from the endowment fund in 1917 and 1918 furnished less than two per cent of the total income of the General Fund, by 1932 and 1933 it furnished over 30 per cent of the income. The statements of the receipts and disbursements show that the current income had so decreased by 1933 that the income from the endowment fund became a vital factor in carrying on the religious and charitable work of the church. The trustees say that, relying on the validity of the pledges to the endowment fund they have carried on the work of the church in face of declining-current income.

It is not necessary to show that any specific activity of" the church was carried on solely in reliance on the endowment fund. In Friedline v. Board of Trustees, 23 Ill. App. 494, a pledge to an endowment fund was sustained, the court saying that since the donee, a college, was in successful operation on the faith of the endowment fund, of which the promise formed a part, and relying on such fund, the defense of want of consideration could not be maintained. Also in In re Estate of Griswold, 113 Neb. 256, where it was held that since the donee, also a college, carried on its functions it would be inferred that expenses were incurred in reliance upon the endowment fund. See also Irwin v. Lombard University, 56 Ohio St. 9, and University of Southern California v. Bryson, 103 Cal. App. 39, 283 Pac. 949.

Mrs. Wheeler’s pledge, as were all the other pledges, was made in consideration of and reliance on the other pledges. It was stipulated that Holmes Forsyth would testify that the pledge of Holmes Forsyth was made in consideration of the pledge of Anna H. Wheeler. It has been held that pledges made specificially in consideration of other pledges where, relying thereon, expenditures have been made, constitute sufficient consideration for such pledges. Beatty v. Western College, 177 Ill. 280; Snell v. Trustees M. E. Church of Clinton, 58 Ill. 290; Whitsitt v. Trustees Presbyterian Church, 110 Ill. 125.

Fundamentally, defendant’s argument is based upon the proposition that no enforceable pledge to leave a bequest to a philanthropic organization can be made. For the courts to sustain this position would substantially injure, if not destroy, all endowment funds, which, as is well known, are universally created in this country by such pledges. The injury to churches, schools, hospitals and similar agencies for good would be irreparable. We cannot give our assent to this.

We hold that there was a binding contract between Arma. H. Wheeler and the board of trustees; that there was a sufficient consideration by reason of the expenditure of money and carrying on the work of the church in reliance on the endowment fund and by reason of the making of the payment of pledges of others.

Defendant says that Mrs. Wheeler’s pledge has been satisfied, but the evidence shows to the contrary. She was very generous in making various contributions toward the church work. Whenever she made a contribution she would designate its purpose, and the church would apply the contribution as she designated. There is a list of contributions by her to a variety of causes and benevolences which are specifically named. This list shows a contribution of $500 to the endowment fund which, as we have said, under the terms of her pledge must be applied on account of the amount of the legacy promised. It was stipulated that no provision was made by Mrs. "Wheeler for the payment of her pledge except as may be contained in her will and the two codicils.

By article 7 of her will she bequeathed the sum of $75,000 to the Illinois Merchants Trust Company, its successor or successors, as trustee, to have and to hold upon certain trusts; by paragraph (a) she provided, among other things, that the net income from this trust estate should be paid to John Timothy Stone as long as he shall live; by her second codicil she canceled and annulled this paragraph (a) of article 7 of her will and substituted in lieu thereof a provision that the income from said trust fund should be paid to John Timothy Stone so long as he shall live, and upon his death one-half of the principal of the trust fund should be paid to the Presbyterian Theological Seminary of Chicago and the other half of the principal to The Congregation of The Fourth Presbyterian Church of Chicago, “if the amount of the annual compensation that shall be being paid at the time of my death to said John Timothy Stone, by said The Congregation of The Fourth Presbyterian Church of Chicago shall not be reduced so long as he shall live. In the event that the amount of said annual compensation paid to said John Timothy Stone shall be reduced after my death then said remaining one-half (%) of the principal or corpus of said trust estate, together with any accumulated income therefrom, shall go to The Presbyterian Hospital of the City of Chicago.”

On the date of Mrs. Wheeler’s death Dr. Stone had ceased to be the pastor of the Fourth Presbyterian Church, but at that time and up to the present the church has voluntarily paid him a pension of $5,000 a year out of the General Fund into which the income from the endowment fund is paid. This legacy in the will cannot be considered as satisfaction of her pledge to the endowment fund of the church. The legacy is not payable to the church but to the Illinois Merchants Trust Company or its successor. It is not absolute but contingent on the fulfillment of certain conditions. Its payment is postponed to the death of Dr. Stone, whereas the pledge was due at the time of the death of Mrs. Wheeler. It is for a different amount than the pledge and has attached to it burdensome conditions not contained in the pledge. Whether or not the church would take anything under the will depends upon the performance of certain conditions, namely, the continuing payment of $5,000 annually to Dr. Stone. This annual payment was voluntary and in the nature of a pension, at the most pursuant to a moral obligation, but this legacy in the will changes the obligation to pay him $5,000 a year to a fixed legal requirement which, if the church fails to perform, it loses all right to the legacy.

It was stipulated that at the time of the death of Mrs. Wheeler, Dr. Stone’s expectancy of life according to the American Experience Table of Mortality was 9.47 years. On this basis, in order to obtain the legacy of one-half of $75,000, or $37,500, the church was obligated by the will to pay Dr. Stone for the remainder of his life the sum of $47,350. It scarcely needs further argument to demonstrate that the legacy in the will was not in satisfaction of the promise made by Mrs. Wheeler in her pledge.

Plaintiff says that interest should be allowed on its claim from the date of the death of Mrs. Wheeler, citing Campbell v. Thompson, 192 Ill. App. 415. Although the question of interest has not been discussed by respective counsel, we are inclined to agree with the holding of the court in In re Estate of Spindler, 277 Ill. App. 397, where a contract to give a legacy was held not to be a contract to pay the sum mentioned. We are of the opinion that Mrs. Wheeler was obligated to give the church a legacy which at the time of her death amounted to $24,500, and that this amount must be treated as a legacy subject to the rights and conditions under which legacies are paid.

For the reasons above indicated, the judgment of the circuit court is reversed and the cause is remanded to the circuit court with directions to that court to remand the claim to the probate court of Cook county with directions to allow the plaintiff its claim as a legacy of $24,500.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


text:
    Jessie Pitkin Williamson, Appellee, v. American Insurance Union, Inc., Appellant.
    Gen. No. 38,547.

      Opinion filed March 2, 1936.
    Glick & Goldstein and Henning & Baker, all of Chicago, for appellant; Nathan Glick, of counsel.
    Paul O’Donnell, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover on a life insurance policy issued by defendant to Henry F. Williamson, her deceased husband, and upon trial had judgment for $3,325, from which defendant appeals. The case was heard by the trial judge on the complaint, answer and a motion by plaintiff to strike defendant’s answer and for judgment on the pleadings, which motion was sustained, and the judgment followed.

The policy is dated October 1, 1931, and contains a provision that the risk of suicide within two years from that date is not assumed; the insured committed suicide May 19, 1933, or within two years from the policy date, and the question presented is whether this operates as a defense, plaintiff claiming that a prior insurance contract voids this provision.

The complaint alleged that on December 2, 1915, in pursuance to an application for membership, Henry F. Williamson became a member of a fraternal benefit society (not the defendant) hereafter called the Fraternal society. The application contained the following :

“I further warrant that no benefit whatever shall be demanded or claimed at my death should I commit suicide within two years after becoming a beneficial member. ’ ’

June, 1931, a reinsurance agreement was effected between the Fraternal society and the defendant company. By this it was provided that the Fraternal society should deliver to the defendant all of its applications for insurance, together with reports of medical examinations, etc. Defendant agreed to reinsure each certificate or policy transferred, held by any member of the Fraternal society, provided that such reinsurance should not be effective until such member voluntarily transferred his policy in the Fraternal society and has received in lieu thereof a policy issued by defendant company. There was also a provision that all members of the Fraternal Society who did not wish to transfer or exchange their policies for policies of insurance issued by defendant should be maintained “in a separate group, hereinafter designated as the Fraternal Group, and shall hereafter pay to the (defendant) company” such premiums or assessments as they were required to pay to the Fraternal society under the terms of the policies in the society. “Such premiums or assessments, so paid by members of the fraternal group, shall be used solely for the purpose of paying claims and liabilities now existing against the Society or hereafter arising on account of policies or certificates of the members of said group.” Section 10 provided that, “it is distinctly understood and agreed that the obligations and liabilities of the Company to the members of the Society and to all persons holding claims or accounts of every kind and character against the Society shall be limited to the obligations and liabilities specifically assumed hereunder and shall be payable only out of the funds of the Society transferred in trust to the Company.”

Williamson elected to accept a new policy of insurance in defendant company as provided for in the reinsurance agreement and signed an application which contained the statement that, in consideration of the waiver by the company of a medical examination the insured’s original application for membership in the Fraternal society should be made a part of the policy issued to him by the defendant company October 1, 1931. The new policy was issued to him; it contained a provision, as follows:

“11. Risks Not Assumed.
If within two years following the date of this Policy, the Insured, whether sane, or insane, shall die by his own hand or hot,'the limit of recovery hereunder shall. - be the reserve on this Policy. . . . ”

The insured died by his own hand on May 19, 1933, which was less than two years from the date of the policy. Plaintiff says that the provision in the original application that no benefit shall be claimed should the insured commit suicide within two years after becoming a member, which limitation expired in 1917, and which application was made part of the new policy issued by the defendant company, is in direct conflict with the provision in the new policy eliminating the risk of suicide within two years after October 1, 1931. Plaintiff argues that these clauses cannot be reconciled and that one or both must be rejected.

It should be noted that defendant’s policy is an entirely new policy of insurance. It is not a renewal or continuation of the Fraternal society policy. Defendant did not agree to assume the policies of the Fraternal society. The members of the society did not become policyholders in defendant company until they took affirmative action to this end. They might, if they wished, retain their status in the Fraternal society; and provision was made in the reinsurance contract to keep such members in a separate group, not connected with the defendant company.

Plaintiff has cited cases like York v. Central Illinois Mut. Relief Ass’n, 256 Ill. App. 8, where a fraternal insurance company reincorporated under a statute, the new company taking all the assets of the old fraternal company and assuming all its liabilities, and where all members of the old corporation ipso facto became members of the new corporation. In Weil v. Federal Life Ins. Co., 182 111. App. 322, affirmed in 264 Ill. 425, it was held that the defendant company assumed and guaranteed the policies of the other company in accordance with their terms and conditions. In the instant case there was no assumption by defendant company of liability of the Fraternal society certificates, whose holders did not become policyholders in defendant corporation.

It is pointed out that the Fraternal society was a Fraternal Benefit Society, while defendant company is what is called a Legal Reserve Old Line insurance company. A policy in the defendant company gave greater rights and protection to an insured than was given by membership in the Fraternal society. The policy in defendant company was nonassessable; it was not subject to deduction due to prescribed or hazardous occupations; it provided for participation in dividends; it gave the insured the privilege of making loans and protected him by premium loans in case of failure to pay premiums on the due date. In all of these respects a policy in defendant company had great advantages over a policy in the Fraternal society.

Plaintiff stresses an interim certificate issued by defendant, purporting to state the rights of the parties between the time the insured applied for a new policy and the time when it was delivered to him. The interim certificate states that it “protects the member in an amount equivalent to that provided under the terms and conditions now obtaining as to the old policy until the effective date of the new policy to be issued to him provided the original policy is now in force.” Plaintiff argues that this certificate is evidence that the defense of suicide was barred as to the policy sued on to the same extent that it was barred under the Fraternal society policy or certificate. We do not so construe this certificate. It is conceded that if the insured had committed suicide while the interim certificate was in force and before the issuance of the new policy, the defense of suicide would be barred, but this certificate by its own express terms was effective only until the new policy was issued.

Was the suicide provision in the application of 1915, which limitation had expired in 1917, intended to be made a part of the policy issued by defendant in 1931? There are a number of provisions in the application of 1915 which, it is self-evident, could not become a 'part of the new policy. In that application the insured agreed to conform to the ‘ Supreme Liaw of the Order now in force, or which may hereafter be adopted by the same.” The old policy was subject to an increase in rates, and the constitution of the Fraternal society provided that if the insured should die while engaged in certain proscribed or hazardous occupations the amount of insurance recoverable would be reduced. It should be noted here that this latter provision is repugnant to the statutes of this State. Ch. 73, par. 376, subpar. 4, Ill. State Bar Stats. 1935. It also contained a provision that conviction of the insured of felony, treason, or a crime should work a forfeiture to all rights and benefits in the Fraternal society; death in consequence of or in violation of law was not assumed nor recoverable; the insured agreed not to engage in any military or naval service in time of war without the written permission from the society. Manifestly, none of these provisions in the old application became part of the new policy.

A reasonable construction of the provision that the old application shall be made part of the new policy is that it was solely for the purpose of providing the defendant with the statement by the insured in the old application as to his physical and mental condition in consideration of a waiver by defendant company of a medical examination. A provision in the new policy is as follows:

“This policy, together with the Application, a copy of which is attached hereto, contains and constitutes the entire contract between the parties hereto, based on the express representation that each and every statement and answer made by the Insured, or on his behalf, in said Application is full, complete and true, and that they are the only statements and answers upon which this contract is made, though in the absence of fraud they shall be deemed representations and not warranties. ’ ’

The representations in the application mean the representations as to the physical condition of the insured, and this provision tends to show that it was these representations in the application which were made part of the new policy.

The general rule in construing contracts of insurance is that the intent and meaning of the parties must be deduced from the contract, its subject matter and purpose, and the situation and circumstances of the parties when they made it, and that these considerations must prevail over the dry words of the instrument, inapt expressions and careless recitals therein, unless that intention runs counter to the plain sense of the binding words of the agreement. United States Fidelity & Guaranty Co. v. Board of Com’rs, 145 Fed. 144. Gans v. Aetna Life Ins. Co., 214 N. Y. 326, presented a situation like that before us, plaintiff claiming that a limitation clause on suicide in a prior policy prevailed. It was held that the suicide clause in the later policy did not relate back to the date of the original contract, under which it became inoperative at the time of insured’s death by suicide.

Plaintiff cites numerous cases supporting the proposition that where a contract of insurance contains inconsistent or ambiguous clauses, construction must be given most favorably to the insured or his beneficiary. First Nat. Bank of Kansas City v. Hartford Fire Ins. Co., 95 U. S. 673, and many other cases. Undoubtedly this is the general rule, but there are an equal number of cases supporting the proposition that such contracts must be given a natural interpretation, looking to the other provisions of the contract and to its general object and scope, and that it cannot be presumed to have been within the intention of the parties to reach an interpretation which would lead to an absurd and unreasonable conclusion, and any interpretation leading to such a conclusion must be abandoned and that adopted which would be more consistent with reason and probability. United States Fidelity & Co. v. Board of Com’rs, 145 Fed. 144; L’Engle v. Scottish Union & National Fire Ins. Co., 48 Fla. 82; Williston on Contracts, vol. 2, sec. 620; May on Insurance (3rd ed.), sec. 174; Couch on Insurance, vol. 1, sec. 177. Couch says constructions must not be unnatural, forced or strictly technical, or sophistical.

The policy issued by defendant contained a provision that ‘‘ After the Policy has been in force for two full years from the date of issue, it shall be incontestable except for non-payment of premiums. ’ ’ Plaintiff says, in effect, that although the insured committed suicide within two years from October 1, 1931, yet the defendant made no defense until the present suit, in which the complaint was filed February 19, 1935, and defendant’s appearance on April 5, 1935, and its answer filed May 25, 1935, which was well after the two-year contestability limitation had expired. Royal Circle v. Achterrath, 204 Ill. 549, is cited in support. The opinion states that it has been held that an incontestable clause after a certain period applies to a case of the death of the insured by suicide, notwithstanding the policy contains another clause providing that death by suicide is not a risk which the company assumes. There is other language in the opinion which seems to support the position of plaintiff in this respect. However, it should be noted that in that case there was no time limit in the suicide clause and the suicide occurred after the expiration of the incontestable period. In the instant case both the incontestable and the suicide clauses contain definite time limitations of two years, and the suicide occurred prior to the expiration of the incontestable period. Moreover, in the Royal Circle case suicide voided the policy and the defendant there was actually contesting the policy. In the instant case suicide does not void the policy but limits the amount of recovery to the reserve on the policy. Mareck v. Mutual Reserve Fund Life Ass’n, 62 Minn. 39, is also cited by plaintiff, but in that case the suicide occurred after the expiration of the incontestable period. Powell v. Mutual Life Ins. Co., 313 Ill. 161, and Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592, cited by plaintiff, are not controlling. Those cases were treating of the defense of fraud, which would invalidate the policies, and it was held that such a defense was a contest within the operation of the incontestable clause.

We hold that raising the defense of suicide where there is a provision that the risk of suicide is not assumed, is not contesting the policy within the meaning of the incontestable clause, and that the incontestable clause creates a short statute of limitations, the purpose of which is to permit the insurer to- ascertain the truth of the representations made in the application. In North American Union v. Trenner, 138 Ill. App. 586, where defendant offered the smaller sum due under the terms of the policy upon the suicide of the insured and denied liability for the full amount of the policy, it was held this was not contesting the validity of the policy, that defendant was doing only that which it was required to do by the terms of the policy, and that the incontestable clause did not apply. In Baker v. Prudential Ins. Co., 279 Ill. App. 5, the policy covered the insured so long as he was an employee of the defendant ; the insured died when, as defendant contended, he was no longer an employee; plaintiff presented the incontestable clause of the policy. We said that “the incontestable provision did not prevent the defendant insurance company from showing that the policy was no longer in effect” because the insured had been discharged before his death, and held that the incontestable clause was intended to prevent the defendant from contending that the policy was obtained by fraud or misrepresentation, or upon any other ground going to the original validity of the policy, citing a large number of cases. In the Royal Circle case, cited by plaintiff, it was held that the incontestable clause creates a short statute of limitations, “giving the insurer a limited period for the purpose of testing the validity of the policy.” See also Mack v. Connecticut General Life Ins. Co., 12 F. (2d) 416, and many other cases.

The language in the policy involved in Scales v. Jefferson Standard Life Ins. Co., 155 Tenn. 412, is identical with the clauses under consideration in the present policy. The court said, “Upon both principle and authority, we think it clear that under this contract the incontestable clause is without application, but that the rights of the beneficiary are fixed by the suicide clause.” And further, “The policy before us was a contract to pay $5,000 on the death of the insured, unless from suicide within two years, and in that event the amount of the premiums only. A reliance upon the terms of this contract does not contest its validity, but assumes it.” So also in Moore v. Bankers’ Credit Life Ins. Co., 223 Ala. 373, the facts are like those in the instant case. It was there contended that as there was a conflict between the suicide and incontestable clauses, the contract must be construed most strongly against the insurer and the incontestable clause must be held to prevail over the suicide clause. The court held that there was no conflict between these two clauses; that one is independent of the other. Hearin v. Standard Life Ins. Co., 8 F. (2d) 202, contains some very apt language pertinent to the present case;

‘1 There is only one construction of these two provisions possible. In the one case, the policy is incontestable after one year from its date for false representations or fraud in the application; in the other, the risk for suicide, if committed within one year, is not assumed. If a risk is not assumed, how can there be a liability? If there is no liability, why must there be a denial thereof before the expiration of the year?” The court held that the incontestable clause created a short statute of limitations during which time the company would investigate to determine whether it would contest the policy, and said:
“How can the insurer investigate Whether the insured will commit suicide? He may take his life within a day or two prior to the expiration of the period of limitation, or the beneficiary may not advise the insurer of the death of the assured until after the expiration of the limitation, or so short a time before that the insurer cannot possibly make the necessary investigation within the period required. Still, if the contention of counsel for plaintiff is to be sustained, the insurer would be prevented from disputing its liability, though the policy in, clear and unambiguous language states that ‘ death by self-destruction within one year from the date of the policy is a risk not assumed. ’ ’

In the instant case defendant does not deny liability for the amount of the reserve provided for in said policy which, under the suicide clause, is the limit of recovery in such a case.

Plaintiff alleged that' defendant, through its agents, after the execution and delivery of the policy in question, by its acquiescence in the construction placed on the policy by the insured and by direct statements construing said policy, declared the policy to mean that it was and should be construed as incontestable to the same extent as the policy issued by the Fraternal society, and that the clause entitled “Risks Hot Assumed” did not apply but that defendant did assume the risk that the insured might die by his own hand to the same extent as said risk had by a lapse of time been assumed by the terms of the application to the Fraternal society; that by reason of said statements of the defendant so construing the policy the insured was induced to and did believe that the policy issued by the defendant would be construed to be incontestable and that defendant assumed to insure the risk of suicide.

Defendant by its answer specifically and expressly denied all these allegations, thus raising a question of fact. Under such circumstances it was error for the trial court to sustain plaintiff’s motion to strike defendant’s answer and to give judgment for plaintiff on the pleadings. Where the facts are disputed the production of evidence is required to be passed upon by the court or jury as a question of fact.

Defendant argues that the effect of the motion to strike was to admit all allegations of fact in the answer properly pleaded, and therefore, as a matter of law judgment should be rendered for defendant on the pleadings. The motion to strike the answer was not like a demurrer to a declaration or complaint. The complaint alleged certain matters of fact, which were denied by the defendant, thus making an issue of fact to be determined by evidence.

For the reasons above indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


text:
    G. C. Christensen, Appellee, v. Frances Blinstrup et al., Defendants. Appeal of William Klein, Jr. et al., Appellants.
    Gen. No. 38,583.
    Opinion filed March 2, 1936.
    Harold O. Mulks, of Chicago, for appellants.
    John A. Bloomingston and Harold Rivkin, both of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from an order appointing a receiver in a foreclosure proceeding. The order is interlocutory and the appeal should have followed the practice prescribed for appeals from interlocutory orders (Practice Act, ch. 110, ¶ 206, Ill. State Bar Stats. 1935) and Rule 21 of this court, which requires that abstracts and briefs of the appellant shall be filed within seven days after filing the record in this court, and the appellee’s brief within the next five days. The case was not docketed in this court as an interlocutory appeal but proceeded as an ordinary appeal; extensions of time were asked for to file a complete record and abstracts and briefs, far beyond the time contemplated by the statute and our rules; the receiver was appointed September 5, 1935, a short record was filed October 5, 1935, the complete record was filed November 6th, appellant’s brief filed November 18th, and appellees’ brief December 3rd. This was in violation of provisions controlling appeals from interlocutory orders, and for this reason the appeal will be dismissed.

However, we have considered this appeal upon its merits. The complaint was in the ordinary form, seeking a foreclosure of a trust deed and asking for the appointment of a receiver; subsequently, in August, 1935, the attorney for plaintiff presented a petition representing that there were instalments of principal and interest due on the indebtedness to the amount of over $55,000; that the taxes for the year 1928 had not been paid and that the premises had been sold for the nonpayment of the taxes for that year; that the premises had also been forfeited for nonpayment of the general property taxes for the years 1929, 1930 and 1931; that the taxes for 1932, 1933 and 1934 have not been paid; that the premises were in the village of Justice Park, Illinois, about 10 or 15 miles from the Chicago city limits, improved with a two-story building the first floor of which is used as a tavern; that the building is about 25 years old; that the fair market value of the premises does not exceed $25,000. Defendants filed an answer and reference was had to a master in chancery who reported, recommending the appointment of a receiver; the chancellor overruled exceptions to the report and appointed a receiver of the premises.

Defendants make a number of points in their brief but the argument does not follow the points as made. Objection seems to be made to the verification of the complaint, which was sworn to in the State of California before a notary public, whose seal is attached, and counsel cite Pfeil v. Loeb, 255 Ill. App. 484, and Blanke v. Hammel, 256 Ill. App. 251, where similar certificates were held insufficient as not showing any authority in the notary to administer oaths. Apparently the statute relating to Evidence was not called to the attention of this court in those cases and was not in the present case. But we find that chap. 51, pars. 57 and 58, provide that we shall take judicial notice of the laws enacted by any State or territory of the United States, and the California law (Political Code of California, 1931, vol. 1, sec. 794) authorizes a notary public to administer oaths.

It is said that the appointment of a receiver upon a mere petition was erroneous, but the complaint as well as the petition asked for the appointment of a receiver. Upon the showing made the court did not abuse its discretion in appointing a receiver. The fact that the premises had been sold for taxes and that the taxes had not been paid for many years, together with the showing of the scant value of the property, was sufficient to justify the appointment.

For the reasons first above stated, namely, that this was an interlocutory appeal, improperly docketed in this court as an appeal from a final order and so treated in the filing of the record, the abstract and briefs, the appeal is ordered dismissed.

Appeal dismissed.

Matchett and O’Connor, JJ., concur.


text:
    John Markus for the use of George Guditus, Appellant, v. Hart, Schaffner & Marx, Appellee.
    Gen. No. 38,623.
    Opinion filed March 2, 1936.
    Irving Breakstone, of Chicago, for appellant; William Rosenthal, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

March 29, 1935, George Guditus recovered a judgment in the municipal court of Chicago against John Markus for $358; April 24th, on application of plaintiff, the trial court entered an order nunc pro tunc as of March 29th, that the court record show the judgment was for wages due plaintiff from defendant, and that the execution issued on the judgment be indorsed with this finding, which was accordingly done.

July 9th, after a return of the execution “no property found,” garnishment proceedings were commenced, and Hart, Schaffner & Marx, as garnishee, answered that it was indebted to Markus in the sum of $22.15 for wages earned by him for the period from July 3rd to July 11th, on which latter date garnishment summons was served upon it, but that said amount was claimed as his exemption under section 14 of the Garnishment Act, as he was head of a family and residing with same. It is the duty of the garnishee to claim for his employee the benefit of the exemption. Illinois Glass Co. v. Holman, 19 Ill. App. 30; Chicago & Alton R. Co. v. Ragland, 84 Ill. 375; Rumbold v. Supreme Council Royal League, 206 Ill. 513. This answer was contested and on August 20th, after testimony and argument were heard, the court found in favor of the garnishee and discharged it, and this appeal is from that order. The garnishee has filed no brief in this court.

The question raised involves the application of paragraph 16 of the Exemptions Act (ch. 52, Ill. State Bar Stats. 1935) to the peculiar circumstances of this case. Paragraph 16 reads:

“No personal property shall be exempted from levy of attachment or execution when the debt or judgment is for the wages of any laborer or servant: Provided, the court rendering judgment shall find that the demand so sued for is for wages due such person as laborer or servant; which finding shall be expressed in the record of said judgment and indorsed upon the execution when issued. ’ ’

It appears from the record that the judgment for plaintiff against Markus was for wages earned by him as a laborer on the farm of Markus. This being so, and because of his compliance with the provisions of paragraph 16 with respect to the judgment and execution containing the proper finding, plaintiff contends that section 14 of the Garnishment Act, which allows the head of a family wage earner an exemption of $20 a week when his wages are garnished, is simply a general statement applied to an ordinary garnishment based on a judgment with no specific findings; that if facts in a case come within its general provisions it should be followed, but if, by additional specific facts and circumstances the case falls within the specific provisions of paragraph 16 of the Exemptions Act, above quoted, then the latter statute should prevail.

Plaintiff says there is no recent decision that distinguishes these two statutes under similar facts, and we have been unable to find a case in Illinois where the identical question was presented. However, from a reading of the cases in our State bearing on the subject of exemptions, we are of the opinion that plaintiff, whose original judgment was for wages earned as a laborer, cannot under paragraph 16 of the Exemptions Act reach money of the defendant which, up to $20 a week, is • specifically allowed the head of a family who resides with the same, as an exemption from garnishment under section 14 of the Garnishment Act.

Before coming to the cases which sustain the trial court in discharging the garnishee it will be helpful, because of the rather novel circumstances presented, to see what construction our courts have placed upon the exemption statutes, and particularly upon paragraph 16. In Epps v. Epps, 17 Ill. App.196, the court in holding that, a traveling salesman and bookkeeper was not a “laborer or servant” within the meaning-of paragraph 16 of the exemptions statute, said: “It is well settled that statutes creating exemptions . . . are beneficial in their operation, and founded in a wise policy, and should therefore receive a liberal construction. . . . But should the provisions of the exemption law under consideration here (par. 16) receive like construction?

“The general purview of the statute is to grant exemption of a certain amount of personal property belonging to debtors, from attachment, execution and distress for rent. The fourth section (par. 16) creates an exception in favor of creditors whose judgments are for their wages as laborers or servants. It would seem that the same policy which dictates a liberal construction of the statute in furtherance of its general beneficial purpose would necessitate a restricted construction of an exception by which its operation is limited and abridged.

“. . .it seems to be a general rule of statutory construction, that provisos and exceptions in statutes, by which their generality is qualified or restrained, or by which something is excluded from their general provisions, are to be strictly construed.” And quoting from an opinion by Mr. Justice Story in United States v. Dickson, 15 Pet. 141, the court says it is “the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso carves special exceptions only out of the enacting-clause ; and those who set up any such exception must establish it as being within the words as well as within the reason thereof. ’ ’

Dickinson v. Rahn, 98 Ill. App. 245, also holds paragraph 16 should be strictly construed as an exception to the general exemptions statute. In Washburn v. Goodheart, 88 Ill. 229, it was contended that the general exemptions statutes should be construed strictly; but the court said this is contrary to the principle of construction applicable to such statutes; that they are not to be construed strictly, but so as to carry out the obvious intention of the legislature to protect the debtor. Also holding to a liberal construction of general exemption statutes are Good v. Fogg, 61 Ill. 449; Gibson v. People, 122 Ill. App. 217; McClellan v. Powell, 109 Ill. App. 222. In Recht v. Kelly, 82 Ill. 147, by a clause in a note upon which judgment was recovered, the maker, who was the head of a family and residing with it, expressly waived the benefit of all laws exempting real or personal property from levy and sale. In holding such waiver ineffectual the court said the principle applicable is that the exemption created by the statute is as much for the benefit of the family of the debtor as for himself, and for that reason he cannot, by an executory contract, waive the provisions made by law for its support and maintenance; that such contracts contravene the policy of the law and hence are inoperative and void. The owner may sell or otherwise dispose of his property, however much his family may need it, but the law will not aid him in that regard, nor permit him to contract, in advance, that his creditor may use the process of the courts to deprive his family of its benefit and use, when an exemption has been created in its favor. This principle is recognized in Powell v. Daily, 163 Ill. 646.

With this outline of construction before us, we proceed to the cases which sustain the conclusion we have reached. Fanning v. First Nat. Bank of Jacksonville, 76 Ill. 53, involved a garnishment proceeding wherein the trial court rendered judgment against the garnishee bank for $80.60, the amount on deposit, despite the defense that the money of the depositor was exempt under paragraph 13 of the Exemptions Act of 1874, and not liable to garnishment process. That statute exempted from execution, writ of attachment, and distress for rent, personal property owned by the debtor, and among other clauses of exemption read, “$100 worth of other property, suited to his or her condition in life, selected by the debtor.” After reviewing several sections of the Garnishment Act and saying that no distinction was made between the kinds of personal property mentioned in paragraph 13 of the Exemptions Act, the court held the money exempt. “The money deposited was property; it was less in amount than $100; he selected it as authorized by the statute; and the mere fact that it was attempted to be reached by garnishee process can make no difference. Wé are satisfied it was exempt under the laws of the State.”

After that decision, as was said in Finlen v. Howard, 126 Ill. 259, the legislature in 1877 enacted an amendment to paragraph 13 of the Exemptions Act, and after enumerating certain exemptions of personal property, the following proviso was added: “Provided, that such selection and exemption shall not be made by the debtor or allowed to him or her from any money, salary or wages due him or her from any person or persons or corporation whatever.” This proviso is contained in our present exemptions law. In the Finlen case the garnishee owed the original judgment debtor $60 which, together with all the other property owned by the debtor, was less in amount than was exempted by law; the debtor was the head of a family, residing with the same. Judgment was rendered against the garnishee. The question involved the construction of paragraph 13 of the Exemptions Act of 1877, amended as above indicated, as to whether, in a garnishment proceeding a judgment debtor could claim and be allowed, out of moneys due him, the exemption provided for in said paragraph, he being the head of a family and residing with it. The court said the plain meaning of the proviso was that it forbids that any exemption be allowed to the debtor from money due him, and that it is clear the legislature intended a distinction should be observed, in the matter of exemptions, between articles of personal property and money due and owing to the debtor. Although that case held that in a garnishment proceeding a judgment debtor could not claim the exemption provided for in paragraph 13 of the Exemptions Act, in the face of the plain proviso therein, the following language of the court is pertinent in the instant case: “By the 14th section of chapter 62 (Garnishment Act) there is specifically exempted an amount, not exceeding $50, of the wages and services of the debtor, being the head of a family, and residing with the same. No other provision is made for exemption of debts due and owing to the debtor. . . . We are of opinion that the proviso under consideration excludes from the debtor’s estate out of which he may make his selection of property exempt, all money due the debtor, without regard to the character of the indebtedness or the circumstances under which it arose. The only exceptions to this are those contained in the 14th section of the Garnishment Act, before referred to, and the 7th section of the act of April 30, 1873, exempting money arising upon policies of insurance upon homesteads.” (Italics supplied.)

In Reade v. Kerr, 52 Ill. App. 467, money owed the debtor by the garnishee was sought to be made exempt from garnishment under paragraph 13 of the Exemptions Act covering personal property, but the court held that the proviso in that section prevented any such exemption. The opinion then uses the following pertinent language: “Of course, this proviso does not abrogate the right of the debtor, if the head of a family, as provided in Sec. 14 of the Garnishment Act, to hold, as exempt $50 due him for wages, or defeat his right, to hold as exempt for one year, the proceeds of the sale of a homestead, and insurance money due him for loss on building, exempted as a homestead, as provided in Secs. 6 and 7 of the Homestead Exemption Act. Subject to these exceptions a judgment debtor, in a garnishee proceeding, cannot claim and be allowed the exemption provided in Sec. 1 of the act of 1877, out of money due him.” (Italics supplied.)

It is contended in the instant case that the words, “No personal property shall be exempted,” appearing-in paragraph 16 of the Exemptions Act, quoted earlier in this opinion, are positive and specific, and therefore should be construed to apply to moneys in the hands of a garnishee, for the reason, says plaintiff, that the exemption of wages under the Garnishment Act is merely general. The identical words appeared in a statute under consideration in the case of Illinois Glass Co. v. Holman, 19 Ill. App. 30, thus: “No personal property shall be exempt from levy of attachment or execution, when the judgment is for commutation of road or street labor. ’ ’ In holding that the provisions of that section could not be extended to proceedings under the Garnishment Act, the court said the language in section 14 of the Garnishment Act being plain and the exemption of so much wages unqualified, and Avithout limitation, it is not for the court to take from, or add to, its provisions. The opinion then says :

“The wages of a laborer have been made the subject of special protection by the legislature in this State. By section 16, C. 52 R. S. (the same paragraph 16 now being considered) no personal property is exempt from levy of attachment or execution when the debt or judgment is for wages. By this section wages to the amount of $50 are exempt from garnishment. It would scarcely be contended that a laborer who had a judgment for wages could garnishee the wages of another laborer when the amount du¡e was less than fifty dollars, and yet if appellee’s construction of section 37 of the act of 1879 . . . and the Garnishment Act, is correct, that would unavoidably follow.” (Italics supplied.)

From Avhat has been said in the cases reviewed we think it evident that section 14 of the Garnishment Act is an exception to the Exemptions Act, creating a specific exemption of wages in favor of a person who is the head of a family and residing with the same, and that paragraph 16 of the Exemptions Act has no relation to the specific exemption so created.

The order of the trial court dismissing the garnishee was proper and it is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Paul Gillis, Plaintiff in Error, v. Stanley Jurzyna, Defendant in Error.
    Gen. No. 38,637.

      Opinion filed March 2, 1936.
    Joseph D. Ryan and Edmund M. Sinnott, both of Chicago, for plaintiff in error.
    Anson H. Brown and Taylor, Miller, Busch & Boyden, all of Chicago, for defendant in error; Anson H. Brown, Orville J. Taylor, Cassius M. Doty and David S. Sampsell, all of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover damages for personal injuries. Upon trial, at the conclusion of plaintiff’s case, a motion to find for the defendant was allowed and judgment was entered that the plaintiff take nothing. Plaintiff by this writ of error asks for a reversal.

Defendant in his brief makes what is in effect a motion to dismiss this writ of error on the ground that the Civil Practice Act, effective January 1, 1934, requires that causes be brought to this court by appeal. The judgment in question was entered November 9, 1933, and the writ of error was brought within two years from that date. Supreme Court Rule 28 and rule 4 of this court provide in substance that if a writ of error be improvidently sued out in a case where the proper method of review is by appeal, this shall not be a ground for dismissal, but if the issues sufficiently appear upon the ¡record before the court of' review, the case shall be considered as if the proper method of review had been employed. Moreover, defendant first asked for a dismissal in his brief filed. The filing of the brief is held to be equivalent to a joinder in error, and by joinder in error the right to move to dismiss the writ is waived. Fread v. Hoag, 132 Ill. App. 233, Finlen v. Foster, 211 Ill. App. 609, and cases there, cited.

Plaintiff was injured while riding in an automobile owned by defendant but driven by another party, defendant not being in the automobile at the time it ran into a street car at the intersection of Leavitt street and 18th place in Chicago. Defendant’s motion to find against plaintiff was based upon the assertion that the driver of the automobile was not at the time the agent of defendant. The trial court took this view and ruled accordingly.

Plaintiff and defendant had been friends for several years, at one time residing in the same neighborhood; they both belonged to the same athletic club; plaintiff was an employee of the Western Electric Company, and on the night of October 31, 1931, there was a dancing party at St. Ann’s hall at 18th place and Leavitt street by an organization composed of Western Electric Company employees; plaintiff had met a friend, Paul Rogers, at their athletic club, but they left there at about 9:30 p. m. and went to St. Ann’s hall, where the party was held; there plaintiff saw defendant, who accompanied a young lady who resided not far from where plaintiff lived.

About midnight plaintiff and Rogers started to go home and bade defendant good-by, when defendant said, “What are you going so soon forf If you will stay around for a half hour I will drive you home ’ ’; they replied, “Well, we will stay around if you will drive us home ’ ’; they waited more than half an hour, when plaintiff suggested to Rogers that they tell defendant they could not wait any longer, so plaintiff said to defendant, “We can’t wait any longer. We are going to go.” Plaintiff testified that defendant then said, “Well, I promised to take yon home. I can not go now but I will ask some fellow to drive you home”; that defendant looked around and saw Vic Mosco, a mutual acquaintance of both plaintiff and defendant; defendant called Mosco and said to him, “Will you take these fellows home? I promised to take them home but I am not going now. You take the keys and come right back. ’ ’ Defendant further told Mosco that when he returned after taking the boys home he wanted him, Mosco, to drive him, defendant, and his girl home.

Defendant then gave his automobile keys to Mosco, who left the dance hall, went to defendant’s automobile, a four-door Ford sedan, and took the seat behind the wheel. Rogers sat in the front seat beside Mosco, and plaintiff sat in the back seat. • Mosco’s occupation was that of a truck driver, and apparently he was a competent and experienced driver; he started northward and then, according to plaintiff’s testimony, proceeded, driving the car in such a manner, with reference to speed and directions, as tended to show wanton and wilful misconduct in driving. Plaintiff testified that both he and Rogers protested to Mosco that he was driving too fast and going in the wrong direction; as the car turned on 18th place it was going about 40 or 45 miles an hour; as it approached the intersection of Leavitt plaintiff noticed a southbound street car on Leavitt crossing 18th place; both plaintiff and Rogers told Mosco not to drive so fast but he did not change the speed of the automobile, and the right front fender of the automobile struck the rear end of the street car and plaintiff was injured. This was substantially all the evidence in the case bearing upon the movements of the automobile and the accident. Neither Rogers nor Mosco testified. Upon this undisputed evidence it cannot be said as a matter of law that Mosco was not the agent of defendant, operating the automobile at defendant’s request, and we hold that the trial court should have submitted the evidence to the jury.

In Smoot v. Hollingsworth, 265 Ill. App. 447, the defendant told his son to take the defendant’s automobile and take two visitors in his home to a show; while driving the automobile it struck a pedestrian; it was contended that the son was not engaged on any business of his father’s in taking the family guests to the theatre. The reviewing court did not agree with this contention but held that the son was acting under direction of his father and was as much an agent of his father at the time in question as a hired chauffeur would have been, and approved the verdict for plaintiff. Nalli v. Peters, 241 N. Y. 177, involved facts very similar to those now before us. The defendant, the owner of the automobile, had promised the plaintiff to take him to another town on a certain day but when the time approached defendant could not go, and thereupon asked a friend to drive plaintiff to this other town in defendant’s car; on the trip the car was overturned by reason of the driver’s negligence; plaintiff sued both the driver and the owner of the ear; upon trial there was a verdict against both owner and driver, but this was reversed by the Appellate division, which ordered a new trial as to the driver and the complaint dismissed as to the owner of the car; the Court of Appeals held, however, that there was evidence from which the jury might find, or reasonably infer, that the driver was driving for the defendant, at his request and for his benefit, saying, “The liability for the acts of another is not dependent upon the strict relationship of master and servant, but upon relationship of similar nature, where one acts for another, at his request, express or implied, for his benefit and under his direction. Under such circumstances, the negligence of the agent is the negligence .of the master or the principal,. ’ ’ And the judgment dismissing the complaint as to the owner was reversed. In Campbell v. Arnold, 219 Mass. 160, the defendant, owner of the automobile, was asked by two women guests at his summer cottage to give them an automobile ride; he indicated that he himself did not care to go but that his guests were free to use the car if they wished, and tendered the key necessary to unlock the automobile switch; one of the male guests took the key and the automobile and drove off for a ride with the two women guests, leaving the owner behind; an accident happened and the owner was sued; it was contended that the automobile driver was not the agent of the defendant owner. The court said the case was close to the ■line but held that the circumstances were properly submitted to the jury to determine the question of agency.

Defendant cites cases like Union Bank of Chicago v. Kalkhurst, 265 Ill. App. 254, and others, but in all of these cases it appears that the driver of the car at the time of the accident had taken it for his own convenience and pleasure; had, in fact, borrowed it and was not using it as the agent of the owner.

Defendant cites a number of cases holding, in substance, that an automobile is not such a dangerous instrumentality as to render the owner thereof liable for its negligent operation by a third person who is not the agent of the defendant. This may be conceded as a general principle, although the many automobile accidents rather tend to throw doubt on the harmless character of an automobile. Cases are not in point where it appears the owner did not know and had not authorized the use of his automobile.

In the instant case defendant had promised to take plaintiff and Rogers to their homes and persuaded them to wait until he was ready to leave the dance hall; when plaintiff and Rogers informed him that they would no longer wait for defendant he delegated to Mosco the duty to take the hoys home; he gave Mosco the keys to the automobile, without which it could not he operated; he instructed Mosco to return to the dance party to take him, the defendant, and his girl to their homes after he had delivered plaintiff and Rogers to their homes. He thus gave specific directions to Mosco where to go and when to return. It was a question for the jury to determine whether, under such circumstances, defendant made Mosco his agent to drive his automobile upon this errand.

Defendant says that the evidence shows that Mosco circled around the block, going in the wrong direction, and deviated so much in going toward plaintiff’s home that the relationship of agency between Mosco and defendant during such deviation was suspended. This again presented a question for the determination of a jury. In Devine v. Ward Baking Co., 188 Ill. App. 588, the driver, an agent for the owner, contrary to instructions made a trip off his route. It was held that he was driving the truck in the regular line of his employment. In Karton v. New Amsterdam Casualty Co., 280 Ill. App. 201, this court had occasion to consider a similar question. There the owner gave the driver permission to use her automobile to drive only to his home, about four or five blocks away; instead of going to his home the driver got drunk and drove the car about five miles away from the owner’s home at a speed of from 70 to 90 miles an hour and ran head-on into a truck and was killed in the collision. Suit was brought. The opinion cited with approval from Dickinson v. Maryland Casualty Co., 101 Conn. 369, where it was said that it would be an unreasonable curtailment of the initial permission to use the car, to hold that any subsequent deviation or departure from the purpose of using the car annulled the permission and put the driver in the position of one unlawfully using the car. Many other cases are cited in this opinion, and we held that the use of the car was within the terms of the permission given by the owner, although there was a marked deviation and departure from the purpose of the permitted use. Other cases to the same effect are Chicago Consolidated Bottling Co. v. McGinnis, 86 Ill. App. 38; Freehill v. Consumers Co., 243 Ill. App. 1.

We agree with the statement of counsel for defendant that on the record in this appeal it is not necessary for us to decide whether the driver of the defendant’s automobile was guilty of wilful and wanton misconduct in its operation. Upon the next trial evidence as to this should be submitted to the jury.

For the reason indicated we are of the opinion that the case should be remanded for a new trial. The judgment is therefore reversed and the cause remanded. ■

Reversed and remanded.

Matchett and O’Connor, JJ., concur.