author: Per Curiam.

text:
    People ex rel. Edward Holvey, Appellees, v. John W. Kapp et al., Appellants.
    Gen. No. 8,573.
    Opinion filed May 8, 1933.
    Hugh J. Dobbs, for appellants.
    A. M. Fitzgerald and H. C. Moore, for appellees.
   Per Curiam.

This case was before this court at a former term. See People ex rel. Holvey v. Smith, 260 Ill. App. 166, and the opinion there set out and published.

The former cause -was an appeal from the circuit court of Sangamon county by the appellees herein, from a judgment of said court entered upon the sustaining of a demurrer by appellants herein to the petition of the appellees herein, praying for the issuance of a writ of mandamus, as set out in said petition. Pursuant to the mandate of this court in said cause, the circuit court of Sangamon county overruled said demurrer and appellants herein refusing to plead further, said court awarded the writ of mandamus by a judgment entered, from which order and judgment appellants have brought this appeal.

No new question, within the jurisdiction of this court, is raised by this appeal that was not before this court on the former hearing.

As to the point raised’ and cases cited tending to show that certain portions of the statutes of Illinois, providing for the commission form of government, are unconstitutional, it is sufficient to say that no such questions appear by the record to have been raised in the court below, are not within the jurisdiction of this court and we have no power to pass upon such questions. This case is merely an attempt to reargue the former case.

The judgment of the circuit court of Sangamon county is, therefore, affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Clarence A. Wood, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 8,639.

      Opinion filed May 18, 1933.
    Stone & Taylor, for appellant.
    Busch & Harrington, for appellee; Earl 0. Harrington and C. E. Tate, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action of assumpsit upon an insurance policy commenced by summons issued on April 9,1931. It grows out of the failure of appellant, The Prudential Insurance Company of America, to pay to the appellee certain instalments which he claims are due him under the provisions of a life insurance policy which had been issued to the plaintiff by the defendant on December 5, 1918. This policy of life insurance contains what is commonly designated as a “permanent disability clause.”

The plaintiff’s declaration consists of a special count upon the policy and the consolidated common counts. In the special count the plaintiff alleges the making of the policy and sets forth the policy of insurance in toto, including the plaintiff’s application for the same. The plaintiff, after setting up the policy of insurance in the special count, avers:

(1) That he became totally and permanently disabled after the payment of the first premium on the policy to such an extent that by reason of such disability or incapacity he was rendered wholly and permanently unable to engage in any occupation or to perform any work for any kind of compensation or financial value; and

(2) That more than six months prior to the institution of this suit he had furnished “due proof” to the defendant of the alleged permanent disability or incapacity to engage in any occupation or perform any work for any kind of compensation or financial value.

The contract provided that in event of the death of the insured the beneficiary named shall receive 120 payments of $50, the first payment to be made immediately upon receipt of due proof of the death of the insured.

The policy also provides for a “commuted” value of the instalments payable thereunder, this value being designated in the policy as $5,135. The policy recites that it was issued in consideration of an annual premium of $142.70 to be paid by the insured on or before the 5th day of December of each year during the continuation of the policy and recites that the total disability privileges are granted to the insured without any additional cost. The policy also contains the customary and usual provisions relating to dividends, incontestability, loan and cash surrender values, extended insurance, etc. Attached to the policy and made a part thereof is a photostatic copy of the application of the plaintiff for said policy and declarations made by the plaintiff to the medical examiners as a part of the application. The application was filed by the plaintiff and dated November 26, 1918. Contained in this policy are provisions commonly designated and known as “a total and permanent disability clause,” which are as follows:

“If the insured, after the first premium on this policy has been paid, shall furnish due proof to the company, while this policy is in full force and effect and while there is no default in the payment of premium, that he, at any time after payment of such first premium, from any cause whatsoever shall have become permanently disabled or physically or mentally incapacitated to such an extent that he by reason of such disability or incapacity is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, the company upon receipt of such proof will waive the payment of each premium that may become payable thereafter under this policy during such disability.

“If such disability shall occur before the insured is 60 years of age the company will, in addition to such waiver, during such disability, pay to the insured the commuted value specified on the first page of this policy, less any indebtedness, in one hundred and twenty monthly installments during ten years, each installment of the amount of $9.74 per $1,000 of commuted value payable; the first installment to become' payable six months after the company shall have received such proof and subsequent installments monthly thereafter. ’ ’

To this declaration the defendant filed a plea of general issue. Issue was joined thereon by the plaintiff and the cause was heard before a jury. The jury returned a verdict for the plaintiff for $1,559.96, and as a part of their verdict answered certain interrogatories or special findings submitted to them at the request of the defendant. A motion by the defendant to set aside the verdict and for a new trial was overruled and the court entered a judgment on the verdict for $1,022.79 and costs of suit, the court having first requested of and received from the plaintiff a remittitur to the above amount. From this judgment the defendant has brought the record to this court by appeal for review.

For brevity we shall designate appellee as plaintiff and appellant as defendant.

The defendant contends that there was an utter lack of due proof submitted by plaintiff of his disability, and that this being a question of law the trial court was in error in permitting the case to go to the jury or in permitting the jury to consider the sufficiency of the proof as a question of fact. To cover this phase of. the case plaintiff submitted what is called in the record plaintiff’s Exhibits 5 and 7. Exhibit 5 is a statement upon a blank, prepared and furnished by the defendant company, consisting of printed questions and blank spaces left for answers, made out by the plaintiff and submitted to the defendant February 27, 1929. The statement, among other things, gives the number of the policy, insured’s full name and date of birth, his home address, and states that applicant was first affected by the present disability on September 15, 1927 ; that he was wholly incapable of engaging in any gainful work and had been continuously so disabled since the 15th to the 20th of September, 1928; that he was not continuously confined to the bed, but was at home all of the time; that applicant had done nothing for three years; that his last employer was the Longview Grocery Company at Longview, Illinois; that his average monthly earnings at the inception of the disability was one hundred dollars a month; that the names of three physicians given were those with whom he had consulted, from September, 1927, to January, 1929; that this illness had continued for three years but was worse since September, 1927; that he had no other insurance. The policy was taken in 1918 and the statement is signed by plaintiff, applicant, but is not verified, there being no form for a verification on the printed statement.

Another statement was submitted the same day by appellee upon a similar blank filled out by Dr. C. E. Johnson of Homer, Illinois, stating that he was first consulted by plaintiff on September 20, 1928, and that his last treatment was on January 19, 1929; that his-diagnosis was pulmonary tuberculosis, aortic dilation (arch), and that the symptoms were objective, with X-ray pictures and subjective, on short breath and weakness; that the diagnosis had been confirmed by X-ray pictures of heart and lungs, showing aneurysmal enlargement of the arch of aorta and fibrous deposits in lung. Dr. Johnson stated that he believed the insured to be wholly incapable of engaging in any kind of gainful work and that he had been continuously disabled since September 20, 1927. He further stated that he had never previously treated the plaintiff; that plaintiff was first affected on April 1, 1927; that the history of the case indicated a previous illness of empyema; that Doctors J. M. Lawson and H. N. Gfreaves had also treated plaintiff in connection with this illness; that plaintiff was not continuously confined to his bed but was confined to his home almost all of this time; that plaintiff does not do anything and has not been able to work since September 27, 1927; that plaintiff had not been able to resume work and Dr. Johnson did not think he ever would be able to resume, work; that plaintiff’s condition had shown no improvement and the witness considered plaintiff so disabled that he would “for all time” be prevented from engaging in any gainful work, and that the doctor came to that conclusion on September 20, 1928.

The doctor described plaintiff’s symptoms as “short of breath, subnormal temperature of mornings 99°— 100 evenings. -Tubercular lungs.” This statement was signed by Dr. C. E. Johnson and submitted to the defendant, but was not verified.

Some other statements were offered in evidence by plaintiffs, but were not admitted by the court as proper proofs of plaintiff’s condition, as having been presented to the defendant more than six months prior to the commencement of the suit. These statements, recited herein, upon the trial were objected to by defendant as “incompetent, immaterial and irrelevant.” They were not objected to because “not verified.” Defendant never asked for verified statements and the printed forms containing questions and -answers provided by defendant had no place or form for a verification. The objections as made, “incompetent, immaterial and irrelevant,” did not raise the question of verification. Competent evidence is that “which, in respect to evidence, means the characteristic of being that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.” 22 C. J. p. 192. The statements were not incompetent.

The rule in regard to relevancy and materiality is that “whenever the court feels that a fact is not oE probative value commensurate with the time required for its use as evidence, either because too remote in time, or too uncertain or too conjectural in its nature, the fact may in the exercise of a sound discretion be rejected.” The matter submitted was not immaterial or irrelevant. 22 C. J.. p. 162.

Nothing in the contract required that “the proofs”, to be submitted to defendant should be verified and defendant did not require such proofs. The insurance contract did not invest defendant with any judicial powers, and did not give the defendant the right to try the question whether or not plaintiff was permanently injured.

It is contended by defendant that under the clause in the policy in question the condition precedent, furnishing due proofs to the defendant more than six months prior to the commencement of suit that he, plaintiff, had become permanently disabled, etc., was a question of law, and that the court should have considered these proofs only and instructed the jury to find for the defendant. But in Traiser v. Commercial Travelers Eastern Accident Ass’n, 202 Mass. 292, 88 N. E. 901, submitted by defendant, the court held:

“This question, it must be remembered, is to be decided solely upon the evidence furnished to the directors. As was stated in Noyes v. Eastern Accident Association, 190 Mass. 171, 181, 76 N. E. 665, the -issue iipon this branch of the case is not what was actually the cause of the death, but whether the plaintiff had furnished sufficient proof to.the directors. Without showing that she has done this, she cannot maintain the action. But with some hesitation we have reached the conclusion that the question whether she has maintained this burden is for the jury. It is clear from what has been already said that from the evidence stated, without considering the additional evidence put in at the trial, which of course cannot be considered upon this issue, the jury might find that the death was due wholly and solely to the accidental injuries. If the jury should so find, we are of opinion that they would have also the right to say that the same fair preponderance of the evidence which had convinced their judgments ought to have produced the same conviction in the minds of other reasonable men. It would be an anomaly for us to decide otherwise. It cannot be said as matter of law that reasonable men were bound to come to only one conclusion. Webber v. Cambridgeport Savings Bank, 186 Mass. 314, 315, 71 N. E. 567. It is not for the defendant, in a case of contradictory evidence, finally and decisively to pass upon the rights of the insured, if such a condition as this has been reasonably complied with.”

Also, in Policemen’s Benevolent Ass’n v. Ryce, 213 Ill. 9, 21, also cited by defendant, the court held: “The question of whether or not there was satisfactory evidence of the death of the assured was a question to be determined by the jury in this suit, and not by the association.” It was also held in said cause that “where an accident policy required the beneficiary to furnish proof of loss satisfactory to the insurer’s board of directors, the beneficiary was only required to furnish such proofs as ought to be satisfactory to reasonable men acting reasonably.”

In Ginell v. Prudential Ins. Co., 200 N. Y. S. 261, the court did hold: “Under the terms of the policy the premium is to be waived and the payment made, if due proof to the company of the total permanent disability be made. The payment is not dependent upon actual total permanent disability, but on proof of such. . . . The provisions that the benefits should be realized during the continuance of the total disability only does not indicate to me that the parties contemplated that the word ‘permanent’ was a synonym of ‘temporary’ in the light of the (to me) significant fact that the benefits are to be realized upon proof of total disability being furnished, rather than upon actual total disability.” And in Policemen’s Benevolent Ass’n v. Ryce, supra, the court held, as is true in all cases, that “the legal effect of such proofs is a question of law for the court.”

We have examined the proofs in this case, the proofs offered as to “the due proofs” to the company more than six months prior to the commencement of the suit, as well as the entire record, and we cannot say, as a matter of law, but that the “due proofs” submitted upon the condition precedent were sufficient to convince reasonable men, acting reasonably, that plaintiff had become permanently disabled or physically incapacitated to such an extent that he, by reason of such disability or incapacity, was rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value. This specific question was passed upon by a special verdict of the jury, as well as the question by a special verdict as to whether the preliminary proof — -“due proof”- — had been furnished, and both special verdicts were in plaintiff’s favor.

Plaintiff in 1894 had been operated on for empyema and was confined in bed or in the house about three months. Dr. J. M. Christie was a witness for plaintiff. He made a fluoroscopic X-ray examination of plaintiff’s chest and testified:

“The results of the fluoroscopic observation on Mr. Wood’s chest showed the left lung was scarred and collapsed, the diaphragm on that side was practically fixed, practically no excursion to it, not over a quarter of an inch excursion of the diaphragm; when he would take in a deep breath there was no lighting up of the chest from that side; the heart, instead of being mostly to the left side of his chest as it is under normal conditions, was displaced to the right side; the right lung was functioning, but there was a good deal of thickening of the tissues in the lower half of the lung; the diaphragm on that side had an excursion of about two inches; the aortic arch, the vessel that leaves the heart, was dilated, I would say, probably a fourth to a half larger than it is normally. There is no expansion on the left side of the chest or at least it is not noticeable. There was expansion on the right side of the chest, not a great lot, not a normal expansion of the chest. We measured his inspiration, which ordinarily from complete expiration to complete inspiration is about three and a half to four inches in a normal patient, was a half an inch in this patient. This decreases the amount of air that can be taken into the lungs. This fluoroscopic examination, I think, was made about a month ago. On last April, when he first consulted us, we made a complete physical examination of the chest. The rapidity of his pulse has been tested; I don’t know just that we did it that particular day. We took his pulse and his temperature was observed at that time, Tout it has been observed since then, too. There was no one else except myself present when this examination was performed. After I saw him in April the next time I saw him was about a month ago. At that time I made another complete physical examination of the chest. I would say the conditions at that time were practically the same as they were at the time of my examination in April.

“I saw him again about a week ago and an examination was conducted. No one was present either at the second or third examination besides myself. I didn’t observe any change in his physical condition between the second and third examinations. I saw him again yesterday. Dr. Powell was present at that examination. At that time we repeated the fluoroscopic examination of his chest and also repeated the physical examination, and observations were taken of his pulse and respiration at rest and after exercise. We also measured the expansion of the chest. There was no difference in the results of the expansion of the chest than when I first measured him. Examination of the respiration showed a respiration of 45 to 50 on rest and after exercise it went up to about 70. The respiration of a normal person at rest is 16 or 18, possibly 20, and after exertion such as Mr. Wood made at that time it could go up to 30. Respiration means the number of times the patient breathes in a minute. We made an examination of his pulse rate at that time. His pulse at rest was 75; after exercise it was 115. The normal increase in rate in a normal person upon such exercise would probably be 90 to 100. His blood pressure at that time was about 130 over 70. So'far as his lungs were concerned, we made the same findings, same condition, that had previously existed. From the first time I examined him down to yesterday I did not observe any improvement in his condition. I have an opinion with reasonable certainty as to whether or not his condition will improve. I don’t think his condition will improve. Regarding an opinion as to whether or not his condition will get worse, that would depend, I would say, somewhat on the care that he would take of himself.”

There was other testimony for plaintiff along the same line.

Dr. Gurnon testified for the defendant that “as a result of the examination I found a condition where he had a chronic — well, construction of his chest on that side, which we call a chronic adhesive pleuritis, but, other than that, physical findings didn’t indicate anything wrong with him. Based upon the physical evidences of my examination, I did not find anything that would interfere with his taking normal exercise. His temperature was 98.4; normal temperature is between 98 and 98.6 or .8 by mouth and a little over a half a degree higher by rectum. That was my first and only observation of him, and was in June, 1928; I don’t know the exact date. After making this examination I made a report of my findings and sent them to the company. I have observed the plaintiff sitting in. the court room here today. I do not see any change in his appearance from the time I first saw him. Defendant’s Exhibit 2 is the report that I sent in to the insurance company.

“As I remember there were two scars on his left chest showing some sort of an operation or incision had been made there. His heart was somewhat displaced toward the right. I had an X-ray taken of him. I did not examine his chest and heart.under a flúoroscope. A man might have normal reflexes so far as his eyes were concerned and still be physically unable to work. At that time I made a count of his respiration and am sure that it was 20. I made a report of that to the company. I also took his pulse at that time. It was 72 to 80. I don’t recall examining him after he had exerted himself. He had some prominence or bulging of the aortic arch at the left. That was determined by X-ray examination. The right lung in the X-ray showed clearer than the left. ’ ’

Dr. Gurnon further testified: “I saw the plaintiff just one time on the 8th day of June, 1928. That was the day I made out this report. At that time I was of the opinion that the insured would not be able to take up any form of profitable employment unless it was absolutely necessary for him to do so in order to live. He told me at that time he was not able to engage in any kind of gainful work. He has a chronic restriction of the left chest and adhesive pleuritis.”

Dr. Walton testified: “I told Mr. Wood if I were him I would get out, expand my chest, drink lots of fresh water, get. lots of fresh air, eat lots of fruit and vegetables and take exercise as he could. Of course, he was probably in somewhat of a weakened condition. Anybody will get that way. I think that the condition I saw there would yield favorably to that kind of treatment. ’ ’

Dr. Greaves testified: “I made an ordinary physical examination, that is, of the chest, -lungs, heart and so on, and nervous system. I had examined him before for other things and I have examined him since. I examined him in May, 1929. That was made at the request of the Prudential Life Insurance Company. I made a report of that examination and sent it to them. I have not examined him at any time since then, but I have seen him frequently. I have seen him on the street in his car, I have seen him sitting, talking with friends, whittling wood, things of that kind. From my acquaintance with him in my examinations of him in February, 1928, and May, 1929, and the times I have seen him and observed him down to the present time I have an opinion as to whether or not during all of that time, at any time at which I saw him, he was incapable of performing ordinary labor. My opinion is that Mr. Wood is not so situated, that is, I mean he was able to do some work. ’ ’

The testimony "was conflicting, but the jury saw and heard the witnesses and the plaintiff and were better able to determine the credibility of the witnesses than this court is able to do.

Plaintiff contends that it is not necessary that he should be totally and permanently incapacitated for any purpose before he could recover on the contract in question. It is argued that because he could drive a car for a short distance and sit in a chair and whittle, did not negative his disability to follow a gainful occupation, citing Missouri State Life Ins. Co. v. Copas, 265 Ill. App. 478, with which authority this court is in agreement.

It is urged by plaintiff that pleading to the declaration on the merits by the general issue, without pleading to the preliminary due proof required by the contract, waives the making and sufficiency of such proof, citing Williamsburg City Ins. Co. v. Cary, 83 Ill. 453; American Central Ins. Co. v. J. B. Henninger & Co., 87 Ill. App. 440; Maltby v. The Empire Auto Ins. Ass’n, 239 Ill. App. 532; Aetna Ins. Co. v. Jacobson, 105 Ill. App. 283; U. S. Health & Acc. Ins. Co. v. Harvey, 129 Ill. App. 104. We cannot agree with .this contention. The general issue in this cause required plaintiff, appellee, to establish every fact requisite under the declaration to establish liability and make out a case.

Defendant complains that plaintiff’s first instruction was error, in that it omits one of the vital issues in the case as to whether plaintiff submitted due proofs of his disability more than six months prior to the commencement of the suit. Said instruction is as follows: “The Court instructs the jury that the question as to whether the plaintiff is totally and permanently disabled within the meaning of the terms of the policy of insurance is a question of fact for the jury, and if the jury believe from a preponderance of the evidence that the plaintiff from any cause whatsoever shall have become permanently disabled or physically incapacitated to such an extent that he, by reason of such disability or incapacity, is rendered wholly ánd permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, then and in such event of the proof the jury should find that the plaintiff is totally and permanently disabled within the meaning of the policy of insurance in question.”

The summons in this cause was issued April 9,1931, and there was submitted to the jury a special interrogatory as follows:

“Did the plaintiff at any time prior to the 9th day of October, A. D. 1930, furnish to the defendant due proof showing him to have become permanently disabled or physically or mentally incapacitated to such an extent that he, by reason of such disability or incapacity, was rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value? Answer the question yes or no.” To which interrogatory the jury answered “Yes,” and we cannot believe that the jury was misled by this instruction.

The further special interrogatory was submitted to the jury and answered in the affirmative:

“Had the plaintiff at any time prior to October 9, A. D. 1930, become permanently disabled or physically incapacitated to such an extent that by reason of such disability or incapacity he was rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value? Answer the question yes or no.”

The jury saw the parties and heard the witnesses and we find no substantial error upon which to base a reversal of this cause.

Accordingly, the judgment of the circuit court of Champaign county is affirmed.

Affirmed.


text:
    Mary Elizabeth Keys, Defendant in Error, v. Bert North, Plaintiff in Error.
    Gen. No. 8,664.
    Opinion filed May 18, 1933.
    0 ’Hair & McClain, for plaintiff in error.
    J, L. Sullivan, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action by defendant in error to recover damages for injuries suffered by defendant in error, while riding in the automobile of plaintiff in error as an invited guest, on the 27th day of September, 1931. The declaration charges a wilful and wanton injury. The suit was started against plaintiff in error and one Arthur North and was tried against the two defendants and a verdict found in favor of defendant in error and against the two defendants, plantiff in error and said Arthur North, in the sum of $5,000. There was a motion for a new trial, which was overruled, a motion in arrest of judgment, which was overruled, and plaintiff in error and said Arthur North each excepted duly to the rulings of the court. Thereafter came defendant in error (plaintiff) and presented her motion to dismiss the cause as to said Arthur North, which motion was granted and the cause was dismissed as to said Arthur North and in the same order a judgment was entered by the court against plaintiff in error and in favor of defendant in error in the sum of $5,000, to which rulings and judgment the plaintiff in error duly excepted. Plaintiff in error has brought the record, by writ of error, to this court for review.

Numerous errors appear upon the face of this record. The declaration undertook to charge a wilful and wanton injury and the proofs of wilfulness and wantonness were based solely upon the fact that plaintiff in error was driving at a high rate of speed upon a dirt or gravel road. In the instructions given, attempting to define wilfulness and wantonness, the jury were warranted in finding a verdict solely upon negligence or a lack of care. Defendant in error, without giving any notice whatever to plaintiff in error, presented and had submitted to the jury seven special interrogatories covering every fact involved in the case, evidentiary and otherwise. This was error and in violation of the statute.

But under no circumstances can this verdict and judgment stand. The verdict was a joint verdict and involved both defendants. Plaintiff cannot take a nonsuit as to any defendant after the jury retire from the bar. The discontinuance as to the defendant Arthur North also worked a discontinuance as to plaintiff in error, section 70 of chapter 110 of the Practice Act (Cahill’s St. ch. 110, 1170); Matthias v. Cook, 31 Ill. 83; Aetna Life Ins. Co. v. Hoppin, 255 Ill. 115; Daube v. Kuppenheimer, 272 Ill. 350; Ritchie v. Arnold, 79 Ill. App. 406; City State Bank of Chicago v. Detrick, 236 Ill. App. 350; Sweet-Orr & Co. v. E. G. Hendrickson Co., 248 Ill. App. 624.

Accordingly, the verdict and judgment of thé circuit court of Edgar county are reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Shurtleee

text:
    Pearl Gregory Blair, Plaintiff in Error, v. Modern Woodmen of America, Defendant in Error.
    Gen. No. 8,685.

      Opinion filed May 18, 1933.
    S. H. Cummins and C. C. Carter, for plaintiff in error.
    George G. Perrin, Funk & McKeene and George H. McDonald, for defendant in error.
   Mr. Justice Shurtleee

delivered the opinion of the court.

This was a suit in assumpsit begun in the circuit court of Scott county at the April term, 1929, alleging the issuing of a benefit certificate No. 3472698 for the sum of $2,000, to one Ernest H. Gregory, husband of the plaintiff in error, and payable to her in case of his death. The case was tried twice. On the first trial the verdict of the jury was for the plaintiff in the sum of $2,133.33, but on a motion for. new trial this verdict was set aside, and on a second trial the jury found a verdict for the defendant.

The plaintiff in error herein made a motion for a new trial which was afterwards withdrawn and a motion was entered by her for a judgment non obstante veredicto which motion the court, after a consideration of the evidence tending to show that the insured, Ernest H. Gregory, died while a member in good standing, and that the plaintiff in error had, since the death of Ernest H. Gregory, made all formal proofs called for by the defendant in error and delivered the same to defendant in error at its Head Camp at Rock Island, Illinois, without objections of any kind allowed the said motion for a judgment non obstante veredicto.

. Defendant in error appealed from that judgment, which appeal was by this court dismissed and after-wards a writ of error was sued out and the case was decided by this court reversing the judgment for the plaintiff in error on her motion for judgment, notwithstanding the verdict of the jury, on the ground that the court had no power to look into the evidence on a motion for judgment non obstante veredicto. The merits of the case were not considered and could not have been considered as the purported bill of exceptions filed in the said cause by defendant in error was stricken out and nothing left but the common law record.

The remanding order from this court was in the following form: “On this day comes again the said parties and the Court having diligently examined and inspected, as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, Are Of Opinion that in the record and proceedings aforesaid, and in the rendition of the judgment aforesaid there is manifest error: Therefore, it is considered by the Court, that for that error and others in the record and proceedings aforesaid the judgment of the Circuit Court in this behalf rendered, be reversed, annulled, set aside and wholly for nothing esteemed, and that this cause be remanded to the Circuit Court for such other and further proceedings as to law and justice shall appertain.”

The remanding order of this court was redocketed in the circuit court of Scott county, whereupon the cause coming on to be heard at the April term, 1932, the defendant in error entered its motion for judgment on the verdict theretofore returned by the jury in the former trial of the cause. A cross-motion was made by plaintiff in error for leave to renew her motion for a new trial and for a venire facias de novo, and the court took the said motions under advisement. Thereafter, on June 29, 1932,- the court allowed the motion of the defendant in error for judgment on the verdict of the jury theretofore returned by it, and rendered judgment that the plaintiff in error take nothing and pay the costs of suit, to which action of the court the plaintiff then and there duly excepted. The court also overruled the motion of the plaintiff for leave to renew her motion for a new trial and for a venire facias de novo, to which action of the court the plaintiff then and there duly excepted.

Plaintiff in error has brought the record to this court, by writ of error, for review.

The only question passed upon by this court when the case was before us at the former hearing (Modern Woodmen of America v. Blair, 263 Ill. App. 387), was the question of the issue made in the pleadings, as the bill of exceptions had been stricken and no proofs were before this court.

The only question raised upon this record is whether the plaintiff in error was entitled to be heard upon a motion for new trial, upon the remandment of the cause. The true rule is laid down in Chicago & N. W. Ry. Co. v. Dimick, 96 Ill. 42, 48, where the court say:

“It is, however, contended by appellee that the questions presented by appellant can not be considered by the court, for two reasons: First, the motion for a new trial was not made in time; second, that the motion for judgment on the special findings was a waiver of the right to move for a new trial. The statute provides, where either party desires to move for a new trial, that the motion shall be made before final judgment be entered, or during the term it is entered. The motion in this case was made at the term and before final judgment was rendered on the general verdict. It is true, a judgment had been entered at a previous term in appellant’s favor on the special findings. At that time appellant did not want a new trial. It would have been but an idle ceremony for it then to have moved for a new trial. No judgment had been rendered against it, and it was satisfied with the judgment of tb,e court. When, however, that judgment was reversed, and a judgment was sought on the general verdict,'then the motion was made for a new trial, and we think it was in apt time. ’ ’

This was followed in Quick v. Indianapolis & St. L. Ry. Co., 130 Ill. 334, a similar case, where the court held, page 339:

“The circuit court erred in entering judgment on the special findings, and for that error the judgment of the Appellate Court must be reversed. The cause will be remanded to that court, with directions to reverse the judgment of the circuit court, and remand the cause to that court, with directions to it to entertain a motion for a new trial by defendant, if one shall be made, and if overruled, to enter judgment on the general verdict.”

The Supreme Court in Cockrum v. Keller, 258 Ill. 276, said: “The practice followed in Quick v. I. & St. L. Ry. Co., 130 Ill. 334, seems to be the correct one”; and the court there further said: “A party in a law case against whom a verdict has been rendered has the right to his motion for a new trial and to the judgment of the trial court upon all of the questions that may properly be raised by such motion. Whether the right to move for a new trial is waived by a motion for judgment upon special findings is a question upon which the authorities outside of our own State are in conflict, but the rule must be regarded as settled in this State by the decision in Chicago and Northwestern Railway Co. v. Dimick, 96 Ill. 42, that the making of a motion for a judgment upon special findings is not a waiver of the right to move for a new trial. The rule in this State is followed by the Supreme Court of Indiana. (Indianapolis and Vincennes Railroad Co. v. McCaffrey, 62 Ind. 552; Ronan v. Meyer, 84 id. 390.) The reversal by the Appellate Court of the judgment below because the court erroneously entered a judgment on the special findings when it should have overruled such motion and entered a judgment on the general verdict does not have the effect of setting aside the general verdict and requiring a trial de novo. The effect is simply to reverse the erroneous judgment and leave the parties in no different situation than they would have been had such motion not been made, or having been made, had been overruled by the trial court. The proper order, in this situation, in the Appellate Court would have been a reversal and a remandment of the case to the circuit court, with directions to that court to overrule the motion for a judgment upon the special findings and to entertain a motion for a new trial should the defendant below see proper to make one, and if said motion for a new trial were overruled, then to enter judgment upon the general verdict.”

The same rule is laid down in Royal Mfg. Co. v. Garfield Sanitary Felt Co., 238 Ill. App. 425. The motion for a judgment non obstante veredicto and a motion for a new trial are inconsistent motions, and the first must be made before a motion for a new trial, and in making the motion for judgment non obstante veredicto, does not waive the motion for a new trial. (Stein v. Chicago & Grand Trunk Ry. Co., 41 Ill. App. 38; Quick v. Indianapolis & St. L. Ry. Co., supra.)

In Interocean Mercantile Corp. v. Sawyer Biscuit Co., 253 Ill. App. 551, 568, the court held: “The plaintiff asks that judgment be entered in this court in its favor for the amount claimed in its affidavit of claim. This we are without authority to do in a case where the right to a trial by jury exists. City of Spring Val ley v. Spring Valley Coal Co., 173 Ill. 497; North Side Sash and Door Co. v. Goldstein, 286 Ill. 209; Knight v. Seney, 290 Ill. 11. This court is likewise without power to direct the entry by the trial court of a proper judgment. But, it may direct the trial court to proceed in conformity with the legal principles announced in its opinion. People v. Lord, 315 Ill. 603.”

We have examined all the cases cited by the defendant in error, but they do not apply to the facts in this case. As the court said in Prentice v. Crane, 240 Ill. 250, cited by defendant in error: “Where the merits of the case have not been determined by the Supreme Court an amendment of the pleadings and the introduction of additional evidence may be permissible, and while the inferior court is concluded by the legal principles announced in the opinion, other facts may be proved within those principles which obviate the objections to granting the relief sought or the allowance of the defense interposed.”

For the reasons stated, the judgment of the circuit court of Scott county is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Eldredge

text:
    Vermont Marble Company, Appellant, v. George G. Bayne et al., Appellees.
    Gen. No. 8,637.

      Opinion filed May 22, 1933.
    Rehearing denied June 22, 1933.
    Bangs, Crane & Slater and Flack & Kerman, for appellant; Brennan J. Slater and Robert J. Burdett, of counsel.
    Gumbart & Grigsby, Chiperfield & Chiperfield, George A. Falder and Walker & O’Harra, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellant, agreed to furnish certain building marble for a mausoleum building at Clinton, Illinois, for the consideration of $4,350. Appellees, Wetzel, Carson and Bayne, respectively, together with one Philip E. Biting signed the following agreement:

“For value received, and as an inducement to Vermont Marble Company to make this contract, the undersigned hereby become surety for the full payment and faithful performance of said contract by the Purchaser, according to the terms thereof, and waives notice of any additions to or deductions from said contract in accordance with the terms thereof, and also notice of defaults; and consents that the Company may waive defaults and grant extensions of time without notice and without in any way releasing or impairing this agreement.

“Signed Geo. G. Bayne
“ “. Philip E. Biting
“ “ G. Wilbur Wetzel
“ “ J. E. Carson”

Subsequently Bayne, Wetzel and Carson wrote a letter to appellant containing the following:

“We hereby consent to and authorize you to release Mr. Philip E. Biting as a surety on your contract for marble, dated May 10th, 1926, with the American Mausoleum Company, upon the signing by Charles E. Dent of Tulsa, Oklahoma, in his stead, and without prejudice as to our signature.

“Very truly yours,
“(Signed) Geo. G. Bayne
“G. Wilbur Wetzel
“J. E. Carson”

Thereafter appellee Dent wrote the following letter to appellant:

'“Referring to American Mausoleum Company’s letter of July 28th, signed by Mr. Geo. G. Bayne, Mr. G. W. Wetzel, and Mr. J. E. Carson, authorizing the release of Mr. Philip E. Biting as surety on your contract for marble dated May 10, 1926, with the American Mausoleum Company, I hereby agree to guarantee the amount of your contract in the place of Mr. Philip E. Biting.

“Very truly yours,
“(Signed) Chas. E. Dent.”

This is an action in assumpsit against Bayne, Wetzel, Carson and Dent to recover a balance of the purchase price of the marble, $3,998.53, including interest. Dent never signed the suretyship agreement and the defense is that appellant released. Biting, one of the co-obligors on the agreement, without having Dent sign the same in accordance with a condition of their letter consenting to such release of Biting and that the signing by Dent in the stead of Biting was a condition precedent to the consent or authority to release Biting and this condition not having been complied with the release of Biting was unauthorized by Bayne, Wetzel and Carson. The release of one co-obligor without the consent or authority of the others had the legal effect to discharge all from liability. Benjamin v. McConnell, 9 Ill. (4 Gil.) 536; Rice v. Webster, 18 Ill. 331; Hem v. Allen, 179 Ill. App. 223; Clark v. Mallory, 185 Ill. 227; El Reno Grocery Co. v. Stocking, 293 Ill. 494; Scott v. Fowler, 227 Ill. 104; Brach v. Matteson, 298 Ill. 387. A demurrer was sustained to the declaration and in this we think there was no error.

The judgment of the circuit court is, therefore, affirmed.

Affirmed.


text:
    People ex rel. Oscar Nelson, Auditor of Public Accounts, Complainants, v. Bank of Rushville, Defendant. People ex rel. E. Ross Chitwood, County Treasurer and Ex-officio County Collector of Schuyler County, Appellee, v. Henry W. Ladewig, Receiver of Bank of Rushville, Appellant.
    Gen. No. 8,676.

      Opinion filed May 24, 1933.
    C. Edward Flesheb and Oscar J. Putting, for appellant.
    O. D. Arnold, State’s Attorney, and B. 0. Willard, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from the circuit court of Schuyler county where decretal orders were entered in favor of E. Boss Chitwood, county treasurer and ex-officio county collector of said county, and against Henry W. Ladewig, as receiver of the Bank of Bushville.

In the case of the People ex rel. Oscar Nelson, as Auditor of Public Accounts of the State of Illinois v. the Bank of Rushville, appellee, E. Ross Chitwood, county treasurer and ex-officio county collector of Schuyler county, Illinois, after obtaining leave of court, filed four intervening petitions in said cause against appellant Henry W. Ladewig, receiver of the Bank of Rushville, wherein he alleged in each of his intervening petitions that he had a preferred claim and prayed for an order of court to the effect that his claim be allowed as that of a preferred creditor, giving him preference over the general creditors of the Bank of Rushville.

The first petition that was filed by E. Ross Chit-wood, as county treasurer and ex-officio county collector of the county of Schuyler, was for the sum of $3,882.21 for the personal property tax for the year 1930, against the Bank of Rushville. The second claim filed by appellee was for the sum of $4,293.33 for money that was on deposit in the Bank of Rushville the day of closing. The other two claims that were •filed by appellee and tried at the same time as the two just mentioned are not hi controversy and have no part in this appeal. The issues were joined on the two petitions and they were heard together, and by stipulation it was agreed between the parties that the records of the proceedings of the trial could be consolidated into one record for the purpose of appeal.

Appellee filed his claim with Henry W. Ladewig, receiver, for $3,882.21 for personal property tax that had been levied against the Bank of Rushville for the year 1930, which was due and payable in the spring of 1931. This personal property tax was not paid by the receiver, nor was the claim allowed by him, and appellee filed his petition in the circuit court in the general liquidation suit against the bank, asking that the claim be allowed as a preferred claim.

The receiver filed his answer, denying that appellee had a preferred claim and also denying that appellee had any claim for tax against the Bank of Rushville.

To maintain his issues, appellee introduced into evidence page 66 of the assessor’s book for 1930 for Rushville township, Schuyler county. The book shows that the Bank of Rushville had personal property of the total assessed value of $85,700.

Page 65 of the collector’s book for Rushville township, 1930, was put in evidence, showing that the Bank of Rushville had personal property of an assessed value of $85,700; that the state tax was $334.23; county tax $317.09; town tax $145.69; road and bridge tax $282.81; corporation tax $1,088.39; district school tax $1,714.00; and that someone had written in pencil “unable to collect tax, Bank in hands of Receiver.” The book was offered in evidence together with the collector’s warrants.

The supervisors’ journal was offered in evidence by petitioner, which shows that the county collector submitted a list to the board of supervisors of personal property tax which he had been unable to collect for the year 1930, and asked credit for the same. Page 309 shows the Bank of Rushville closed and the assessed value of $85,700, and the amount $3,882.21.

The court entered a decree that “said claim so filed by said E. Ross Chitwood, County Treasurer and Ex-Officio County Collector, be and the same hereby is allowed as a preferred claim, and the claim for a preference is hereby allowed accordingly.” The decree then ordered the receiver to pay $3,882.21 “in due course of administration.’ ’; and the receiver was ‘ ‘ ordered to consider the said sum of $3,882.21 as an amount to be preferred against the assets of the said Bank of Rushville to all other claims against the said bank except those claims having an antecedent lien against the assets of the bank.”

We have presented appellant’s statement of the case as to the first claim for the recovery of taxes against the bank. Appellee has presented its motion to transfer the cause to the Supreme Court on the ground that the cause presents a question concerning the revenue and that this court has no jurisdiction to hear the cause.

The collector’s books showed the items of this tax and below the items there was marked in pencil “unable to collect tax, Bank in hands of Receiver. ’ ’ The assessor’s books were submitted in evidence, showing an assessment of personal property against the bank to the amount of $85,700 and'various levies of taxes thereon were purported to be shown. It is contended by appellant that the proofs do not show a legal tax levied.

As to the second claim made in the suit appellant presents the following statement: Appellee, county treasurer for Schuyler county, had on deposit in the Bank of Rushville an account known as the general treasurer’s fund. There was to the credit of appellee in said Bank of Rushville, in the general treasurer’s fund, the sum of $4,293.33 at the time of the closing of the bank. Appellee filed a claim for this amount with appellant, as receiver of the Bank of Rushville and designated it as a preferred claim for undistributed tax money, and filed in the general liquidation suit then pending in the circuit court of Schuyler county an intervening petition, setting up the filing of the claim and asking that it be allowed as a preferred claim over general creditors. The receiver filed his answer denying that the petitioner was entitled to a preference.

Appellee introduced testimony showing that B. L. Strong, appellee’s predecessor in office, on April 28, 1930, had deposited in the Bank of Rushville two deposits, one in the sum of $7,558.01, and the other in the sum of $3,774.64, and that the deposits were made up of a list of persons from whom the bank collected the taxes and then credited the account of the county collector,- The testimony further shows that the Bank of Rushville did not give credit for this deposit made on April 28 until September 2, 1930, and then it was entered upon the county collector’s passbook and credited to his account.

B. L. Strong consolidated his collector’s account and the general treasurer’s account before he retired from office, and completely extinguished the collector’s account in which these deposits had been made. The general treasurer’s account consisted of moneys of every kind and character, paid into the treasury, and checks were drawn against it to pay routine office expenses and county bills. As to these items appellee contends that the proof shows that, in accordance with the custom, the bank had asked for the privilege of collecting the taxes for certain of what would seem to be customers, and that in pursuance of such request the deputy collector took to the bank in April, 1930, a list of such customers, together with the amount due for taxes, and at the same time handed to the bank tax receipts covering the same to the various parties. One of such slips of paper, being a deposit slip in the Bank of Rushville, was dated April 28, 1930. The two slips embraced in the total items of taxes amounted to $11,332.65. The proof does not show when these collections were made, but they were not placed to the credit of County Collector Strong until September. Consequently, no distribution of such funds could have been made, and according to the testimony of Mrs. Leach none was made.

Under Strong’s administration, he kept a collector’s account in which he placed all the tax money; a treasurer’s account in which he placed any miscellaneous items and receipts of the county; a dog tax fund and a miscellaneous fund. At the termination of his office, he did not make prompt settlement with the incoming treasurer, Mr. E. Ross Chitwood, the present petitioner. On December 5, 1930, Strong transferred his collector’s account, amounting to $9,447.90 to his treasurer’s account; and on December 8, 1930, he gave a check to Mr. Chitwood for $9,522.28. Of that amount, of course, the sum of $9,447.90 was the proceeds of tax collections.

The two items in dispute amounted to the said sum of $11,332.65. Strong had in his account as collector on December 5, 1930, the sum of $9,447.90. It is apparent that had there been a distribution of $11,332.65, there could not have been $9,447.90 in the collector’s account on December 5. It seems to be conclusively established that there was no distribution of the two items amounting to $11,332.65.

■ These cases are here consolidated under an order of the court. The receiver of the bank merely stands in the shoes of the bank for the purpose of paying taxes, and is the only person against whom proceedings may be instituted by the State to collect the tax.

We are clearly of the opinion as to the first claim set out that it is a proceeding against the taxpayer to collect the tax; that it involves a question of revenue and that this court has no jurisdiction to hear the cause.

It is held in People v. Cermac, 317 Ill. 590, 596: ‘ ‘ The revenue could only be involved, under the issues of a case, so that this court would have jurisdiction of an appeal, where some of the authorities authorized by law are proceeding to assess or collect taxes under the law and questions arise between them and the taxpayers.” Citing Reed v. Village of Chatsworth, 201 Ill. 480; and People v. Hendee, 199 Ill. 55.

As to the second claim, whether it involves the question of revenue or not, it is so tied to the first claim that this court cannot pass upon it without exceeding its jurisdiction, and passing upon both of the issues in the case.

Accordingly, in pursuance of the motion by appellee, the cause is transferred to the Supreme Court.

Cause transferred.


text:
    W. F. Backs, Appellee, v. Nelson Construction Company, Appellee, Meyer Coal and Supply Company, Appellant, and Jess Fielder, Appellee. Nelson Construction Company, Appellee, v. W. F. Backs, Appellee, Meyer Coal and Supply Company, Appellant, and Jess Fielder, Appellee.
    Gen. No. 8,682.

      Opinion filed May 24, 1933.

      Sumner & Reardon, for appellants.
    Warnock, Williamson & Burroughs, for appellee W. F. Backs; Chapman & Du Hadway, for other appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is a suit in equity to enforce a lien upon moneys held by the State treasurer, for the consideration of doing work upon State roads, in behalf of the public, under section 23 of chapter 82 of the revised statutes, Cahill’s St. ch. 82, ff 23.

The Nelson Construction Company, appellee, had a contract with the State of Illinois for the construction of sections 135 and 136 of Route 160 Madison county, and thereafter a certain portion of said work was sublet by said Nelson Construction Company to the Meyer Coal and Supply Company, and they in turn sublet a part of their work to one J ess Fielder. The complainant, W. F. Backs, appellee, furnished horse food and supplies to Fiélder for horses and mules and the same not being paid for filed this bill of complaint against Fielder, the Meyer Coal and Supply Company and the Nelson Construction Company, and filed notices with the proper State officers and gave notice to all of said parties. The pleadings are of great length and complicated and we shall attempt to set out the salient points only in the case.

After the evidence in the case was taken-the complainant, by leave of court, filed an amendment to the prayer for relief in the original bill, which asks for an accounting to determine the amount due from any or all of the defendants to said proceeding- to the complainant for feed and supplies furnished to Jess Fielder on sections 135 and 136, and that a decree be entered accordingly, and that the complainant may be decreed to have a lien on the moneys due to said defendants, or any or either of them, from the State of Illinois by reason of any contract’s which they or either of said defendants may have had with the State of Illinois for the construction of said sections 135 and 136, and work done in pursuance of said contract, said lien to be to the extent of the amount due and owing from Jess Fielder to the complainant on account of horse feed and supplies furnished on either of said sections 135 or 136 or both.

Fielder answered the bill. He admitted the making of the contracts, stated that he had separate contracts for sections 135 and 136 and that the feed and supplies furnished by complainant were furnished and used by him while working on section 135, but denies that he contracted for or used any of the feed or «supplies while working on section 136. Fielder further denied that complainant was entitled to a lien upon any funds coming to the defendants or in the hands of the State, and averred that full settlement had-been made for all work done upon section 135.

The answer of the Meyer Coal and Supply Company follows the same line and denies that complainant is entitled to a lien upon any funds; avers that it had or has no knowledge of the furnishing of any supplies to Fielder; that the contracts for sections 135 and 136 were separate, independent contracts, and that full settlement has been made by the State and this defendant for all work done upon section 135, and denies that complainant furnished any supplies for the work on section 136 and denies that complainant ever served any notices upon the State or upon any of the defendants.

On April 21, 1930, the cause was referred to the master in chancery. The only pleadings at that time filed were the bill of complaint and answers aforesaid. The Nelson Construction Company did not file, any answer until March 23, 1931, at which time the master had made his report of the evidence. The matter was being argued before the court when on March 18, 1931, the Nelson Construction Company was granted leave to answer the bill of complaint and file a cross-bill.

The answer of the Nelson Construction Company admits that complainant is in the grain and feed business ; that the Nelson Construction Company was awarded a contract by the State of Illinois for the construction of sections 135 and 136, route 160; admits that said company sublet a portion of the work on said contract to the Meyer Coal and Supply Company, and that such defendant in turn sublet a portion of said work to the defendant Jess Fielder.

Said answer neither admits nor denies the allegations of the bill of complaint with reference to the contract entered into between the complainant and Jess Fielder, the amount of feed furnished, and the amount claimed by the complainant to be due therefor.

The answer denies that the complainant has requested the defendant to pay the amount due; but admits that the complainant has filed with the State officials of the departments of the State of Illinois a claim for lien; denies that the complainant is entitled to the relief or any part thereof prayed by the bill of complaint.

The cross-bill filed by the Nelson Construction Company on March 23, 1931, avers that in June, 1928, the Nelson Construction Company was awarded by the State of Illinois three several contracts for the construction • of sections 135, 136 and 136a, Madison county; that on June 2, 1928, by written contract, it sublet a portion of the work to be done on all three of said sections to the Meyer Coal and Supply Company; that all the work on section 136a has been fully completed and paid for by the State and settlement made between the Nelson Construction Company and the Meyer Coal and Supply Company.

The cross-bill avers that the Meyer Coal and Supply Company sublet a portion of the work on sections 135 and 136 to Jess Fielder, and that in the month of February, 1930, W. F. Backs filed with the designated State officials a statement of claim for feed and supplies alleged to have been furnished by him to Jess Fielder on sections 135 and 136; that at the March term, 1930, the said W. F. Backs filed his bill of complaint to foreclose his mechanics’ lien as against the Nelson Construction Company, the Meyer Coal and Supply Company and Jess Fielder; that said defendants appeared, the cause was referred to the master in chancery, the evidence taken before the master and reported to the court and arguments heard thereon in part; that it appears from such- evidence and from the argument that there are no moneys, bonds or warrants due or about to become due to the Nelson Construction Company under "its contract with the State on section 135, and that for this reason, which appears to be conceded by the parties on the hearing, no lien can be established or decreed in favor of W. F. Backs for feed and other materials supplied and furnished by him to Jess Fielder on section 135; and that the court under the issues made on the bill of complaint cannot completely determine and adjudicate the rights of the parties on section 135.

The cross-bill states that there is due from the Nelson Construction Company to the Meyer Coal and Supply Company $2,620.58 for work on sections 135 and 136; that said contract provides for the payment to its subcontractor in instalments as the work progresses in accordance with State estimates for work done and as payments are received by the cross complainant from the State, withholding 10 per cent of each instalment due the subcontractor until final instalment and until completion and acceptance of the work, and at the time the subcontractor submits evidence that all bills in connection with said sections have been paid, or in lieu thereof releases and consents for final payment.

The cross-bill further alleges that because of the claim filed by W. F. Backs and the failure and inability of the Meyer Coal and Supply Company to furnish evidence that payments of all bills on said section or releases and consents for final payment, the State withholds from the cross complainant on its contract on section 136 $3,128.58, which amount includes the sum of $2,620.58 due the Meyer Coal and Supply Company on sections 135 and 136, and an additional sum of $500 which the State withholds to cover costs; that cross complainant cannot procure said $500 until the rights of the parties on both sections 135 and 136 have been determined.

The cross-bill further alleges that unless such rights are adjudicated and determined that additional litigation will result between W. F. Backs, Meyer Coal and Supply Company and the cross complainant, and that cross complainant is threatened with such litigation; and that it is for the best interests of all parties and will save a multiplicity of suits if the court will hear additional evidence and adjudicate and determine the rights of the parties with reference to section 135 as well as section 136.

The answer of the Meyer Coal and Supply Company admits substantially all of the matters set out in the cross-bill, but denies that the whole matter cannot be determined on the issues as made.

Appellee Backs answered the cross-bill and admitted substantially the matters alleged, the amounts due and coming due to the various parties and further answered.

The answer admits that unless the rights of the cross complainant are fully adjudicated the cross defendant Backs will institute additional proceedings against the cross complainant and the Meyer Coal and Supply Company jointly and severally, which proceedings will be primarily based upon a letter written by the cross complainant to the cross defendant, which is as follows, to wit:

‘1 Greenville, Illinois,
“Oct. 8, 1929.

“ W. F. Backs,

“Carpenter, Illinois.

“We beg to inform you that we will stand good for bills thus incurred by our subcontractors. However, Mr. Meyer, of the Meyer Coal and Supply Company will pay you your amount, upon receipt of his next estimate from the State, which will be within the next thirty days.

“Meyer Coal and Supply Company have subcontracted from us and they in turn have sublet some of the work to Jess Fielder. Therefore we will be responsible for such bills.

“Kindly advise us if this is not satisfactory.

“Very truly yours,
“Nelson Construction Company,
“By A. D. Nelson,”

and upon promises made by Meyer Coal and Supply Company to pay for the feed and supplies furnished by this cross defendant to Jess Fielder if the same are not paid for by Jess Fielder.

The cross complainant thereafter amended its cross-bill to incorporate the matters set out in appellee Backs’ answer, and further averred: That W. F. Backs never made a reply to said letter of October 8, 1929, and that it should not be construed^ as a promise to assume personal liability to pay the claim of Backs; that it was not so meant or intended and was not so construed or acted upon by Backs, and that it was purely voluntary and based upon no valuable consideration whatever, and that no feed, grain, materials or supplies were thereafter furnished by Backs to Fielder on either section 135 or section 136 in reliance thereon; that all said merchandise had been sold and delivered by Backs to Fielder prior to the date of said letter; that Backs waited until all money - on section 135 had- been paid out by the State, and then proceeded to file with the State his claim for a lien; that when said claim was filed there were funds on hand with the State due on section 136; that the Backs’ claim included materials furnished on section 135 and section 136; that because the contract between the Nelson Construction Company and Meyer Coal and Supply Company was a single contract, covering both sections, the State has withheld out of funds due the Nelson Construction Company on section 136 an amount sufficient to pay the claim of Backs and the additional sum of $500.

Appellant Meyer Coal and Supply Company further answered the cross-bill, stating that it had no knowledge of the letter written October 8, 1929, by the cross complainant. Appellee Backs also further answered the cross-bill, denying that the letter of the Nelson Construction Company was a voluntary offer and answering that, with the exception of $20 worth, no grain or supplies were furnished by appellee Backs to Fielder after October 8, 1929, on either section 135 or section 136, but that all of said merchandise with said exception was sold and delivered to Fielder prior to that date; but denies that it was on the faith of Jess Fielder alone, the fact being that on numerous occasions the Meyer Coal and Supply Company agreed with him to protect cross defendant’s claim and see that it was paid; denies that after said letter of October 8, 1929, was received by him it was disregarded as a promise or guarantee on the part of the Nelson Construction Company to pay said claim, but he, in consideration and in reliance upon said letter, forbore and delayed the perfecting of his claim for a lien ; admits that he filed no lien on section 135 until all moneys due thereon had been paid out by the State.

Upon a consideration of all the proofs heard, the chancellor in his decree found, among other things, that the Nelson Construction Company had two contracts with the State of Illinois, one for the construction of section 135 and one for the construction. of section 136, both on route 160, Madison county; that the grading work involved in both of these sections of road was in one contract by the Nelson Construction Company, sublet to the Meyer Coal and Supply Company and that the Meyer Coal and Supply Company in two contracts sublet all of the shoulder work on both of these sections to Fielder; that appellee Backs, pursuant to an agreement with Fielder, furnished horse and mule feed to Fielder; that all of the feed furnished by appellee Backs was used by Fielder in feeding horses and mules which Fielder had on the job and which horses and mules were used in the construction of said work; that the fair cash market value of the feed so furnished by Backs, appellee, to Fielder on section 135 amounted to $832.02, and the amount furnished on section 136 amounted to $198.40. At the time of the decree there was due appellee Backs for feed furnished on section 135 the sum of $937.12 and for feed furnished on section 136 the sum of $223.15, the sums so due at the time of the decree including interest from the time the feed was delivered to the date of the decree; that Backs, appellee, on February 24, 1930, filed the necessary notices with the proper State officials and that he later also served on said officials certified copies of the bill; that there is still due from the Nelson Construction Company to the Meyer Coal and Supply Company on their one contract covering section 135 and section 136 the sum of $2,620¡58, and that because of the manner in which the account between said parties was kept it cannot be ascertained how much of such sum is due on section 136; that there is still due and unpaid to the Nelson Construction Company and remaining in the hands of the State officials on the contract between the Nelson Construction Company and the State for section 136 the sum of $3,120.58; that on January 10, 1930, the Meyer Coal and Supply Company executed an affidavit setting forth that all bills for labor, feed, gasoline, etc., owed by them on section 135 had been paid; that the Meyer Coal and Supply Company at the time it made said affidavit knew or by the exercise of any diligence would have known, that the claim of appellee Backs was still unpaid; that the Nelson Construction Company, relying on said affidavit, made a similar affidavit with the State officials and thereupon on January 27, 1930, the State paid to the Nelson Construction Company the balance due on section 135,. amounting to $800.60; that in so far as the said affidavit given by the Meyer Coal and Supply Company is concerned the claim of appellee Backs for feed sold and delivered to Fielder was a bill owed by the Meyer Coal and Supply Company; that because of the affidavits made the funds held at that time by the State officials on section 135 were disbursed, which would not have been done had said affidavits correctly set forth the facts that the claim of appellee Backs was unpaid and that if said funds had not been disbursed, Backs’ lien claim would have been filed in ample time on section 135; that because of a certain letter written by the Nelson Construction Company and all of the facts and circumstances involved, appellee Backs was not chargeable with negligence or laches in not having filed his claim for lien on section 135. All of these findings of the chancellor are amply supported by the testimony and evidence. The Meyer Coal and Supply Company have brought the record to this court by appeal for review.

It appears in the contract between appellee Nelson Construction Company and the Meyer Coal and Supply Company, appellant, to construct sections 135 and 136, that it was one, indivisible contract and an entirety. It also appears that the Meyer Coal and Supply Company in its contract with Fielder separated these sections and there were two contracts. Appellee Backs furnished supplies to Fielder for each of these sections. . In November, 1929, the Meyer Coal and Supply Company knew of the bills incurred by Fielder with Backs upon both sections.

The original bill of complaint was amended in the prayer by praying for an accounting and for a decree based upon the equities of the case, following the lines of the cross-bill.

The evidence shows that the Meyer Coal and Supply Company undertook to fulfill and perform that portion of the two contracts of the Nelson Construction Company with the State on sections 135 and 136, included in one contract between them, that called for grading, excavating and shoulder work. The Meyer Coal and Supply Company was not entitled to final payment on its contract until the Nelson Construction Company received payment from the State. The Nelson Construction Company could not get its money from the State to pay the Meyer Coal and Supply Company without presenting proof from the Meyer Coal and Supply Company that all “their bills” had been paid. “Their bills” meant not only bills which Meyer personally contracted, but all bills which were lienable, contracted by the Meyer Coal and Supply Company or by its subcontractors or employees on that portion of the work undertaken by it. The Meyer Coal and Supply Company stood between the Nelson Construction Company on the one hand and Fielder and Backs on the other as to all work that the Meyer Coal and Supply Company undertook to perform and all lienable claims against that portion of the work.

The Meyer Coal and Supply Company knew about the claim of Backs for feed furnished Fielder the same as it knew about the claims for labor hired by Fielder. The Meyer Coal and Supply Company knew about its liability for the labor and acknowledged its liability when on November 10 or November 16 it arranged-for payment and then paid in December. The Meyer Coal and Supply Company could not express any distinction between the claims for labor and for feed; there is none; it was as liable for one as for the other. The evidence is clear that Meyer knew, on November 10 or November 16 about the claim of Backs and knew that Nelson expected it to be taken care of, and that Nelson had on November 7 paid Meyer an estimate of $1,259.23 out of which to take care of it. Meyer, Mrs. Toerper .and Backs all agree that Backs presented his itemized claim that day at the Edwardsville bank. The letter of Nelson to Backs, under date of October 8, promising that Meyer would pay the claim out of the next estimate in 30 days, was there read to Meyer. And yet, Meyer not only refused to pay, but neither he nor Backs told Nelson of this situation, and two months later, on January 6, Meyer gave Nelson an affidavit, signed and sworn to by Meyer and Mrs. Toerper, that “all bills for labor, feed, gasoline,” etc., had been paid. In reliance on this, Nelson presented it to the State and on January 27 the Nelson Construction Company got its money from the State on section 135.

On February 19 Backs, appellee, filed his claim on both sections 135 and 136, and later brought this suit. Because it now appeared that the Meyer affidavit was false, the State withheld enough money on section 136 to cover the claim on both sections 135 and 136, notified Nelson, and Nelson withheld the balance due Meyer under their single contract on both sections. It was in the light of this unquestioned state of facts that the court undertook to make an equitable apportionment of this fund.

It is contended by appellant that one claiming a mechanic’s lien must rely wholly on .the statute for his recovery, since such liens are not recognized either at common law or in equity, in the absence of statute (Armstrong v. Obucino, 300 Ill. 140), and that statutes providing for mechanic’s liens must be strictly ,construed, since such liens are not recognized either at common law or allowed in equity, independent of statute, and exist only by virtue of statutes. (North Side Sash & Door Co. v. Hecht, 295 Ill. 515; Hoier v. Kaplan, 313 Ill. 448.) And it is further contended by appellant that a court of equity has no power in a mechanic’s lien case to enter a personal decree against any contractor or subcontractor, where a lien claimant fails to establish his right to a lien. Turnes v. Brenckle, 249 Ill. 394. Nevertheless, we are not able to determine that the decree violates any of the rules so contended for by appellant.

Appellant in this case is in this position: In November, 1929, by the testimony of its secretary and treasurer, it had full knowledge of complainant’s (Backs’) claim and had refused to recognize or pay it. On October 8, 1929, the Nelson Construction Company, in writing, had agreed to pay the complainant’s claim and had pledged that appellant would pay the amount of complainant’s claim “upon receipt of his next estimate from the State, which will be within the next 30 days,” and upon January 6, 1930, appellant, the Meyer Coal and Supply Company, had furnished to the Nelson Construction Company, appellee, an affidavit stating that, “We have paid all bills for labor, feed, gasoline, etc., owed by us on section 135, route 160, and do release the Nelson ¡Construction Company from any and all claims thereof.” This affidavit is false, and was false at the time it was made, and it must be held that the affidavit and release were fraudulent and void, so far as complainant’s rights are concerned, or else it must be admitted that the two companies entered into a conspiracy to defraud the complainant. No such charge can be made in this case against the Nelson Construction Company, appellee.

Appellant contends that all'moneys and funds for the building of section 135 had been paid out by the State and distributed by the contractors when complainant presented his bill of complaint. So far as appellant and the Nelson Construction Company are concerned, this was not true, for the appellant entered into a contract with the Nelson Construction Company to build and construct both sections 135 and 136 as one entire contract and for one agreed price, and any moneys paid by the Nelson Construction Company to the Meyer Coal and Supply Company for this work must be held to apply upon both sections, and regardless from which fund in the State’s hands in this' case the payment may have been .made, any overplus of funds for section 135, in the hands of any of the parties to this cause, must be held to be in trust for carrying out the one entire contract, made between appellant and the Nelson Construction Company, appellee, for the construction of both sections 135 and 136. This does complete equity and leaves all parties with exactly that -to which each is entitled and injures no one. But it is urged that equity has no jurisdiction in a mechanic’s lien case, except as to the form of procedure, but it is provided in section 12 of chapter 82, the Lien Act, Cahill’s St. ch. 82, ft 12: “The court . ; . shall have the same power and jurisdiction of the parties and subject matter, and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise provided in this act.”

“The same power and jurisdiction of the . . . subject matter, . . . as in other cases in chancery, except-as is otherwise provided in this act,” means just what it says. Complainant could have no" lien, if he furnished no material. Complainant could have no claim against the State unless he served proper and sufficient notices before the fund was paid out by the State, in an orderly and legal manner. Complainant is claiming nothing from the State in this case. He is merely attempting to reach a fund and compel its distribution in an orderly and equitable manner. Complainant is relying upon the statute and seeking to correct a violation of the statute by others who have sought to overreach and defraud him. There is authority for the views here expressed. In McMillan v. Joseph P. Casey Co., 231 Ill. App. 422, 429, it was held that: “An entire contract cannot be apportioned and the performance of it enforced in fragments. Adler v. World’s Pastime Exposition Co., 126 Ill. 373.” It was further held in the-same case:

“The articles in this case were furnished to Casey & Company to be used, it may be conceded, upon two separate sections of the road, but Casey & Company never did any work upon or became entitled to any pay for improving the second section. Casey & Company only worked upon subdivision A-l, and the fund in appellant’s hands all grows out of one contract. The terms of the statute, section 23, seem to provide a lien to any person who has furnished material, apparatus or machinery for the section or contract, for which the said fund was the consideration, regardless of any prior contracts, and even if there had been no prior contract, express or implied, for the furnishing of said material and machinery, and we do not, therefore, concur in this assignment of error by appellant as applied to the facts in this case.” And again the court holds in this case:

“The foreclosure of mechanic’s liens is under the forms of equity and except as changed by statute, should be according to the principles of equity. ’ ’ This case was affirmed in McMillan v. Casey Co., 311 Ill. 584. The provisions of section 23- of the act involve the distribution of a public fund in equity. ‘1 The construction of section 23 is not governed by the construction given the provisions of the act relating to the enforcement of liens afforded against the owner’s real estate.” (Alexander Lumber Co. v. Farmer City, 272 Ill. 264.)

It has been held that where new cases arise out of the ordinary beaten track of equity, where the remedy at law would be inadequate, equity will not hesitate to give the proper specific relief merely because there is no precedent established. (Dodge v. Cole, 97 Ill. 338; Curtiss v. Brown, 29 Ill. 201; Voris v. Sloan, 68 Ill. 588; Gavin v. Curtin, 171 Ill. 640; Warfield-Howell Co. v. Williamson, 233 Ill. 487.) And it has been further held that courts of equity were established to protect and enforce equitable rights, as well as to administer equitable remedies, which courts of law were unable to grant, and whenever the primary right or interest to be maintained or enforced is purely equitable, created by equity and not by law, the jurisdiction of equity is exclusive. (Jones v. O’Connell, 266 Ill. 443; Rhoten v. Baker, 104 Ill. App. 653.) Equity will not suffer a wrong to be without a remedy, and it is held that the question whether notice served in a mechanic’s lien case is a proper notice or whether it was properly served on the proper officials can only be raised by the party upon whom the notice must be served. (McMillan v. Joseph P. Casey, supra; First National Bank of Chicago v. City of Elgin, 136 Ill. App. 453; Spalding Lumber Co. v. Brown, 171 Ill. 487; In re Danville Hotel Co., Inc., 33 F. [2d] 162.)

It is urged by appellant that when averments of the bill, upon which prayer for equitable relief is based, are not sustained by the proof, the court is without jurisdiction to retain the cause for the purpose of adjudicating legal demands. (Fleming v. Reheis, 275 Ill. 132; Hogg v. Hohmann, 330 Ill. 589; O’Donnell v. Henley, 327 Ill. 406; Brauer v. Laughlin, 235 Ill. 265.) But in the opinion of this court the averments in the bill and cross-bill for equitable relief are fully sustained. The cross-bill avers matters that entitle appellee, the Nelson Construction Company, to equitable relief to avoid a multiplicity of suits, and we cannot agree with the contention of appellant that no consideration accrued to appellee, the Nelson Construction Company, by the written agreement to pay the Backs ’ claim. In consideration of that agreement, appellee Backs forbore to give notice of his claim until a large amount of the funds were withdrawn from the State treasury and until he discovered the fraud on the part of the Meyer Coal and Supply Company. Neither can appellant in this case raise the question of jurisdiction for the first time, not having demurred but having answered the bill and cross-bill, and by proofs submitted his cause to the chancellor. It was held in Adams v. Crown Coal and Tow Co., 198 Ill. 445, at page 452:

‘ ‘ The appellee company cannot now be heard to here urge that the circuit court was without jurisdiction to enter the decree or order appealed from. The proceeding is in nature analogous to a bill of interpleader. The court had jurisdiction of equitable remedies of that nature. The parties voluntarily appeared and submitted their controversies to the court, and the court thereby became invested with jurisdiction of the persons of the litigants. None of the parties can be allowed to urge in a court of review, for the first time, that the proceeding was irregular in matter of pleading or form of procedure.”

For the reasons stated, the decree of the circuit court of Jersey county is affirmed.

Affirmed.


text:
    Rozgis, Appellee, v. Missouri State Life Insurance Company, Appellant.
    Gen. No. 8,688.
    Opinion filed May 24, 1933.
    Rehearing denied June 23, 1933.
    Gunn, Penwell & Lindley, Allen May and J. E. Buroham, for appellant.
    J. E. Dean, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This was an action in assumpsit to recover for alleged total and permanent disability under a certificate of insurance. The policy,. a standard form of life insurance, contained the following contract and provision:

“If the Member shall furnish the Company with due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease and that he or she is then, and will be at' all times thereafter, wholly prevented thereby from engaging in any gainful occupation and that he or she has been so permanently and totally disabled for a period of six months, the Company will immediately pay to the Member in full settlement of all obligations hereunder, the amount of insurance in force hereunder on the Member at the time of the approval by the Company of the proofs as aforesaid.”

There was a declaration, which set out the policy, and various pleas, replications, rejoinders and surrejoinders, the large number of which are not important to the determination of this cause.

Appellant issued a group policy of insurance to the Coal, Coke and Supply Companies Employees’ Insurance Association, and under that group policy certificates of insurance were issued to members of said association.

On December 7, 1928, a group of solicitors, working upon salary, solicited the employees of that mine for insurance and the undisputed testimony of these solicitors was that they were working on a salary and that their salary ivas not dependent upon the number of applications taken. The evidence was undisputed that these agents were mere soliciting agents and had no authority other than to solicit applications and see that the applications were sent to the home office.

Appellee signed an application, which by the “card record” showed the date of his birth as June 15, 1882. This application purports to have been signed January 1, 1928, but had been lost. The court denied admission of the “card record” in evidence. Upon the trial, which was held May 27, 1932, appellee by his own evidence was 66 years of age.

There was a verdict and judgment in favor of appellee and against appellant in the sum of $850 and appellant has brought the record to this court, by appeal, for review.

In the proofs there is a great deal of testimony as to the statements and conversations between the appellee and soliciting agent at the time the application was signed, which in the opinion of this court has no bearing upon this case. An agent having authority only to solicit applications and forward to the home office, is a soliciting agent and has no power to waive the provisions of a policy. (Winnesheik Ins. Co. v. Holsgrafe, 53 Ill. 516; Pardon v. Wasvary, 249 Ill. App. 327; Niedringhaus v. Aetna Insurance Co., 235 Ill. App. 335; Shimp v. Cedar Rapids Ins. Co., 26 Ill. App. 254; 26 C. J. 289; 32 C. J. 1116.) Neither is parol evidence admissible to vary the terms of a written contract by showing what was said before or at the time of its execution. (Hartford Fire Ins. Co. v. Webster, 69 Ill. 392; Winnesheik Ins. Co. v. Holsgrafe, supra; Niedringhaus v. Aetna Insurance Co., supra.) An insured is bound by the terms qf a policy of insurance where he accepts the policy and keeps it for a long period of time. (Shimp v. Cedar Rapids Ins. Co., supra; Dwelling House Insurance Co. v. Raynolds, 41 Ill. App. 427; Harvick v. Modern Woodmen of America, 158 Ill. App. 570.)

But the fundamental defect with this cause of action is that appellee is seeking to compel appellant to execute a contract which it did not make and which is against the public policy of the State. All insurance is permeated with a public interest, and policies of this character are supervised and controlled by the State. Illinois has a standard form of policy, supervised by the Director of Trade and Commerce, and it is provided in Cahill’s St. ch. 73, Tf 538, section 280, chapter 73, Smith-Hurd’s Revised Statutes 1931:

“No . policy of life insurance shall be issued or delivered in this State by a company organized under the laws of any foreign government doing a business of life insurance under this Act, until the form of the same has been filed with the Director of Trade and Commerce and after the Director of Trade and Commerce shall have notified any company of his disapproval of any form, it shall be unlawful for such company to issue any policy in the form so disapproved,” etc.

No form of policy has ever been issued or sought in the State of Illinois insuring against total and permanent disability by bodily injury or disease, accruing before one becomes 66 years of age or accruing before one becomes 64 years of age, and it is, therefore, a subject as foreign to the insurance laws of this State as any subject of speculation, imagination or chance, and becomes a mere gambling contract and is against the public policy of the State.

Neither the legislature nor the common law has vested in the courts the administrative power to determine what are the proper subjects to be protected by insurance, which are only to be determined by a vast amount of accumulated data, facts and experience, the results of which are changeable with the times, seasons and cycles. This court is without power, authority or inclination, by estoppel or otherwise, to give effect to an illegal and unlawful contract of the nature as arises in this suit.

For all that appears in this record, appellee did have a right to recover that portion of the premiums he paid for the total and permanent disability sections of his contract, if he had claimed their return.

For the reasons stated, the judgment of the circuit court of Vermilion county is reversed.

Reversed.