text:
    Adelor J. Petit, Appellant, v. John F. Cuneo, Appellee.
    Gen. No. 39,357.
    Opinion filed April 19, 1937.
    Rehearing denied May 3, 1937.

      Franklin R. Overmyer and Roy E. Clin, both of Chicago, for appellant; Wendell H. Ney, of Chicago, of counsel.
    Campbell, Clithero & Fischer, of Chicago, for appellee; Delbert A. Clithero and Raymond P. Fischer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed his complaint alleging* the malicious interference by defendant with the performance of a contract between plaintiff and the W. F. Hall Printing Company whereby plaintiff was damaged in the sum of $10,000; defendant filed a motion to dismiss, which was allowed, and plaintiff appeals.

A preliminary question is presented touching* the filing of defendant’s motion to dismiss. Upon filing of the complaint defendant asked for a bill of particulars, which was filed; it appears by affidavit that on September 14, 1936, which apparently was the last day of the time for defendant to plead, one of the attorneys for defendant delivered a copy of the motion to dismiss to a clerk with instructions to file the same; that it was filed in the office of the clerk of the superior court but due to an error or inadvertence in the clerk’s office it was not marked filed; that on October 24th the attorney for plaintiff was informed by a deputy court clerk that the motion to dismiss had not been marked filed and had not been entered on the register; the affidavit asserted that the motion had been in the court folder all of the time since September 14th, and the court was asked to enter an order directing the clerk to file the motion nunc pro tunc as of September 14th; that on the same day the motion to file was made plaintiff moved for a default judgment for failure of defendant to plead, and both motions were heard at the same time; the court granted defendant’s motion to file the motion to dismiss as of September 14th and also allowed the motion to dismiss.

Where it appears that a document is delivered to the office of the clerk of a court and has been placed in the files without being stamped as filed, it is proper to enter an order that it be marked filed as of the date on which it was delivered to the clerk. Dowie v. Chicago, W. & N. S. R. Co., 214 Ill. 49, 54; Hohmann v. Eiterman, 83 Ill. 92. Moreover, Buie 8 of the Supreme Court provides that the judge may, for good cause shown, extend the. time for filing any pleading, and that such order may be entered either before or after the expiration of the time. The trial court was justified in ordering the motion to dismiss to be filed nunc pro tunc as of September 14, 1936.

The principal question presented is whether plaintiff’s complaint states a cause of action. It appears from the complaint and the bill of particulars filed that the W. F. Hall Printing Company, by resolution of the Executive Committee adopted July 17, 1934, employed J. Arthur Friedlund and Adelor J. Petit (plaintiff) to prepare a plan for obtaining the consent of bondholders to a revision of the provisions of a trust deed securing the bonds of the company and provided that they submit the plan to the Executive Committee for its consideration and approval; the resolution also provided that the compensation to these men for this work was to be fixed by the Executive Committee.

September 10, 1934, the Executive Committee adopted a resolution fixing- the compensation of Friedlund and Petit for their services at $500 a month each, “plus a contingent fee to be determined by the Executive Committee after giving- due consideration to the degree of success with which any such plan may meet if adopted.” This resolution was approved and ratified by the Board of Directors. February 21, 1935, apparently after the services had been completed, the Executive Committee adopted a resolution that the company to pay to Friedlund and Petit $30,000 each for legal services rendered in connection with the readjustment of the sinking* fund provision of the company’s bond issue; March 5th this action of the Executive Committee was ratified and approved by the Board of Directors and also, subsequently, by the stockholders of the company. Apparently both Friedlund and Petit during all of this time were members of the Board of Directors, but there is nothing" in the record to support the suggestion made in defendant’s brief that they voted on this subject.

Defendant was a large stockholder in the W. F. Hall Printing Company, owning more than 150,000 shares of stock. Plaintiff says that on or about April 8, 1935, defendant, by reason of his large holding of stock, secured the election to the Board of Directors of three men who were dominated by him; that he thereupon maliciously and unlawfully began to interfere with the performance of the contractual obligations of the Hall Company with reference to the payment of the sum of $30,000 to plaintiff, so that the company breached its obligations and refused to pay plaintiff $30,000 which it would have paid brm but for the malicious interference by the defendant; that on April 4, 1936, the Hall Company tendered to plaintiff $20,000, refusing to pay the balance of $10,000; that plaintiff was obliged to accept the $20,000, and upon receiving this amount gave a receipt or release to the Hall Company of any and all claims of whatsoever description he had against this company or its subsidiaries; plaintiff alleges that by reason of defendant’s wrongful interference he was damaged in the sum of $10,000, which he asks defendant pay him, with interest.

Reduced to its simplest terms, this is a case where the services had been rendered and the amount of compensation to be paid plaintiff is to be fixed by the Executive Committee; this Committee fixes the amount at $30,000, but later changes its mind and concludes that $20,000 instead of $30,000 is fair and adequate compensation for the services rendered; this change of mind is brought about by the defendant, and the question is, Can he be held financially liable ?

Plaintiff alleges in his complaint, and emphasizes in his brief, that the action of defendant was malicious. To this it is sufficient to reply in the language of Mr. Justice Cooley: “Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful.” Cooley on Torts (4th Ed.), sec. 534.

Could defendant, a large stockholder in the Hall Printing Company, lawfully bring about a reduction in the amount of plaintiff’s compensation? All of the cases, with one exception, cited by plaintiff’s counsel which sustain judgments against third parties 'for maliciously interfering with the performance of contracts, involve contracts that were executory which the third party had prevented being performed. Such cases are not applicable to the instant case, where the contract had been fully performed by plaintiff. Plaintiff cites Hornstein v. Podwitz, 254 N. Y. 443. That case involved a real estate broker’s commission on the sale of the defendant’s property; apparently the amount of the broker’s commission was fixed by the am mint for which the property was sold; the sale was completed and the amount of commission was then due the broker, but the president of the selling company and the purchasers entered into a conspiracy to conceal from the broker the fact that the sale had been made, and agreed to divide the broker’s commission among themselves; it seems this plan was at the instance of the president of the selling company, and it was held that he should respond in damages. It is apparent that the facts are not analogous to the situation in the instant case.

When plaintiff and Friedlund completed the work their conpensation was undetermined. It lay in the judgment of the Executive Committee as to what would be reasonable and fair compensation. The defendant, a large stockholder, had a legitimate interest in the amount of compensation to be paid plaintiff. We see no legal principle which would deny to him the right to interfere with the payment of what he conceived to be an excessive amount.

We find no case where the facts are precisely like those before us. Kemp v. Amalgamated Ass’n, etc., Division No. 241, 255 Ill. 213, held that union employees had a legitimate interest in the question whether their fellow workmen were members of the union and that because of this interest the union officials representing them were not guilty of malicious interference in calling a strike. In Lukach v. Blair, 178 N. Y. S. 8, it was held that even if the members of a directorate had caused a corporation to breach its contract, the directors could not be held open to tort claims, and especially is this true where full satisfaction could be had of a judgment obtained in an action against the corporation for breach of contract. In the instant case there is no allegation of insolvency of the Hall Printing Company. In Winters v. University Dist. Bldg. & Loan Ass’n, 268 Ill. App. 147, the officers of the association interfered with the sale of real estate which was under contract ; it was held that as the association held a mortgage on the property it had an interest in the matter which justified interference with the contract of sale; many cases are cited, all holding’ that one who has an interest may take action to protect his rights, and even if the interference is done with malice he cannot be held financially liable for the result of his actions.

Directors of corporations are elected to represent the stockholders and we see no reason why the stockholders, who are the real owners of the corporation and whose money is involved, cannot lawfully influence the action of the directors.

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

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Nessen Transportation Company, Appellant, v. J. L. Larsen. Gartland Steamship Company et al., Appellees.
    Gen. No. 39,239.
    Opinion filed April 19, 1937.
    Rehearing denied May 3, 1937.

      Kremer, Branand & Hayes, of Chicago, for appellant ; Harvey Wienke, of Chicago, of counsel.
    Pope & Ballard, of Chicago, for appellees; Beverly B. Vedder, Ferris E. Hurd and John F. Manierre, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Nessen Transportation Co., a corporation, brought an action of attachment against J. L. Larsen to recover $4,732.11 claimed as damages sustained by plaintiff on account of Larsen’s breach of contract. Larsen was not served and did not appear. The Gartland Steamship Co. and Arthur Sullivan and Harry J. Sullivan, copartners, doing business as D. Sullivan & Co., were served as garnishees. The Steamship Company answered that it owed Larsen $400 for wages bnt claimed a set-off for this amount. Sullivan & Co. answered that they had no funds or property belonging to Larsen. The case was tried before the court without a jury, the facts being’ stipulated. At the conclusion of the hearing the court, on its own motion, dismissed the cause for want of jurisdiction and plaintiff appeals.

Plaintiff contends that the municipal court erred in dismissing its suit on the ground of want of jurisdiction, and counsel for the Steamship Company seem to concede that the municipal court had jurisdiction. We think it obvious that the court erred in holding it had no jurisdiction.

The facts as stipulated, so far as necessary to state them for the purpose of this opinion, are that the Steamship Company operated a motorship in the Great Lakes and employed Larsen as master, and that at the time of the service of the garnishee summons on the Steamship Company it owed Larsen $400 for September wages earned by him as master of the ship. The wages of Larsen and of the crew of the ship were payable at the end of each month, and on October 1, 1935, the Steamship Company wrote to Larsen, who was then in charge of the ship at Duluth, Minnesota, inclosing check for $850, with directions that he pay the crew this money for their September salaries, and advising him that they were holding his check for $400, his September wages, pending the outcome of the garnishment suit. Larsen cashed the check, took out $400 for himself and paid the crew $450, leaving a balance due the crew on that date of $400. Upon arrival of the boat at Chicago on October 8, the Steamship Company paid the $400 to the crew, being’ the balance of their September wages. The Steamship Company had no knowledge until October 8 that Larsen had taken the $400 and applied it on his Wag’es, and his action in this regard was unwarranted.

The chief controversy between counsel is whether the wages of Larsen, who was master of the boat, were exempt from garnishment under the provisions of sections 601 and 713, Title 46 U. S. C. A. (chap. 18).

Plaintiff takes the position that the wag’es were not exempt. Section 601 provides: “No wages due or accruing to any seaman or apprentice shall be subject, to attachment or arrestment from any court, and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of wag’es or of salvage made prior to the accruing thereof shall bind the party making the same, except such allotments as are authorized by this chapter. This section shall apply to fishermen employed on fishing vessels as well as to seamen.”

Section 713, which is entitled “Definitions, schedule, and tables,” provides: “In the construction of this chapter, every person having the command of any vessel belonging to any citizen of the United States shall be deemed to be the ‘master’ thereof.; and every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a ‘ seaman. ’ ’ ’

Plaintiff’s position is that under the provisions of the above sections the “wages” of the “seamen” of a vessel are exempt from garnishment but not the wages of the “master.” We think the contention cannot be sustained. Section 601 exempts the wages of any “seaman” from garnishment, and section 713 provides that every person having command of any vessel shall be deemed to be the master and that every person “employed or engaged to serve in any capacity on board the same shall be deemed and taken to be a ‘seaman.’ ” The “master” certainly is employed and engaged to serve on board the vessel and therefore comes within the definition of a “seaman.”

In In re Scott, 250 Fed. 647, in construing a statute which provided that a ‘ ‘ seaman, ’ ’ a foreigner who had declared his intention of becoming a citizen of the United States, may be naturalized, it was held that the term “seaman” included the master of a vessel.

In The Burns Bros. No. 31, 29 F. (2d) 855, the court was called upon to construe the word “seaman” in a United States statute, and it was held that it included the master of a tug.

In The Balsa, Cummins v. Wry, 10 F. (2d) 408, again the word “seaman” was held to extend to the master of a vessel.

In International Stevedoring Co. v. Haverty, 272 U. S. 50, plaintiff, a stevedore, was engaged in storing freight in the hold of a vessel, and he was held to be a “seaman” within the provisions of the U. S. statute which provided that “any seaman who shall suffer personal injury in the course of his employment may . . . maintain an action for damagus at law, . . .

“It is true that for most purposes, as the word is commonly used, stevedores are not ‘ seamen. ’ But the words are flexible. . . . We cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship.”

And again the Supreme Court of the United States held that the term “seaman” includes a stevedore working in the loading of a foreign vessel. Uravic v. Jarka Co., 282 U. S. 234.

In Warner v. Goltra, 293 U. S. 155, the court held that the “master” of a tug boat was a “seaman” within the meaning of the statute. The court there said: “ ‘It is true that for most purposes as the Word is commonly used, stevedores are not “seaman.” ’ Int. Stevedoring Co. v. Haverty, 272 U. S. 50, 52. None the less, verbal niceties were bent to the overmastering purpose of the act, to give protection to the workers injured upon ships. ‘Words,’ we said, ‘are flexible’ . . . In a narrow sense the term is limited to one who is an ordinary seaman and nothing more. A seaman, as opposed to the master or an officer. One can find a like range of variation in the use of the word ‘crew.’ ‘It is sometimes used to comprehend all persons composing the ship’s company, including the master; sometimes to comprehend the officers and common seamen, excluding the master; and sometimes to comprehend the common seaman only, excluding the master and officers.’ . . . What concerns us here and now is not the scope of the class of seamen at other times and in other contexts. Our concern is to define the meaning for the purpose of a particular statute which must be read in the light of the mischief to be corrected and the end to be attained. Congress knew that men employed upon a ship were without a remedy in damages for negligence beyond their care and maintenance, unless the injury was a consequence of the unseaworthiness of the ship or a defect in her equipment. ’ ’

From the foregoing authorities and others which we have not referred to, it is apparent that the word “seaman” has been given different meanings, as that term has been used in different statutes. Obviously the term “seaman” may not have the same meaning in all statutes. The general tendency of the acts of Congress and the decisions of the courts has been “directed to extension, not to restriction,” of the term “seaman” and the master of a vessel has not been specifically excluded in the definitions found in section 713. We therefore hold the master to be a seaman within the meaning of that section, and his wages, under section 601, are not subject to garnishment.

While it is unnecessary to pass on the question of the Steamship Company’s set-off because that matter has not been argued, yet we might observe, since the facts are stipulated, that we are unable to see why the set-off should not be allowed, in which case, obviously, plaintiff could not recover.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Justice O’Cohhor

text:
    Robert Schoenbacher and George Schoenbacher, Appellees, v. Hyman Kadetsky, Appellant.
    Gen. No. 39,294.
    Opinion filed April 19, 1937.
    Henry A. Blair and John A. Bloomingston, both of Chicago, for appellant.
    Mitgang & Baskin, of Chicago, for appellees.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Plaintiffs brought suit to recover damages for personal injuries and property damage claimed to have been sustained through the negligence of defendant which resulted in an automobile collision. Defendant denied liability, there was a jury trial and a verdict in favor of Robert Sehoenbacher for $6,500 for personal injuries, and a verdict in favor of George Sehoenbacher for $175 for property damage to his automobile. Judgments were entered on the verdicts and defendant appeals.

About 3:30 p. m. of November 30, 1934, Robert Sehoenbacher was driving his brother George’s automobile north in Vincennes avenue, Chicago, and defendant was driving his automobile east in 42nd street. The automobiles collided at the intersection of the streets, injuring Robert Sehoenbacher and damaging George Sehoenbacher’s automobile.

The evidence offered on behalf of Robert Schoenbacher, who will be referred to as plaintiff, is to the effect that the day was bright and clear and the streets dry; that he was driving his brother’s car north in Vincennes avenue, traveling at about 15 miles an hour and when he reached a point about at the south crosswalk of the intersection he saw defendant’s eastbound automobile about 150 feet west of Vincennes avenue coming at about 35 or 40 miles an hour, and when plaintiff was about half way across the intersection his automobile was struck by defendant’s automobile near the rear left wheel, thrown toward the northeast corner, and plaintiff was severely injured. Plaintiff testified in his own behalf and called a number of witnesses whose testimony substantiated his version of the accident. On the other hand, defendant testified that just before the collision he was driving his automobile east along the south side of 42nd- street at about 15 miles an hour; that when he reached Vincennes avenue he put his car in second gear; that he then saw plaintiff’s automobile about 100 feet south of the street intersection traveling at about 50 or 60 miles an hour; that it had been raining shortly prior to the accident and the streets were wet and slippery; that he tried to stop his car but it slid around, struck plaintiff’s car and they both stopped near the northwest corner of the intersection.

The court, at plaintiff’s request, submitted to the jury the following interrogatory: “Was the defendant, Hyman Kadetsky, operating his automobile in a wilful and wanton manner at the time and place alleged in plaintiff’s complaint? ’ ’ which was answered in the affirmative. The complaint alleged that plaintiff was driving the automobile at the time and place in question and was in the exercise of due care and caution for his own safety; that defendant negligently drove his car, as a result of which plaintiff was seriously and permanently injured. It is then alleged that at the time and place defendant did ‘ ‘ one or other of the following acts, which caused the injuries to the plaintiff,” (a) Carelessly and negligently failed to give the right of way to plaintiff in violation of the Statute, (b) Carelessly and negligently drove the automobile at an excessive rate of speed in violation of Section 22 of the Motor Vehicle Act, (c) “Wilfully and wantonly drove said automobile at an excessive rate of speed,” (d) “So carelessly and negligently operated . . . said automobile” that it collided with the automobile plaintiff was driving.

Defendant contends that the court erred in giving the following instructions at plaintiff’s request: (1) which told the jury that “in order for the plaintiffs to prove that the defendant was guilty of wilful and wanton conduct in the operation of his automobile , , . it is not necessary for the plaintiffs to prove actual ill will on the part of the defendant toward the plaintiff, but if the preponderance or greater weight of the evidence shows that the defendant in the operation of his automobile, just prior to, and at the time of the accident in question operated his automobile at such a high, dangerous, and reckless rate of speed (if you find the same was so operated), and so as to evince on the part of the defendant a reckless disregard of the rights of others, then if you so find, from the preponderance of the evidence, the plaintiffs would be entitled to recover.” (2) That “in order for the plaintiffs to prove that the defendant was guilty of wilful and wanton conduct in the operation of his automobile it is not necessary for the plaintiffs to prove that the plaintiffs were in the exercise of any care whatsoever for their own safety . . . and if you believe from a preponderance of the evidence that the defendant operated his automobile ... in such a manner as to amount to wkntonness or a general disregard for the lives of persons who might be using the streets, and that such conduct on the part of the defendant amounted to wantonness, then you are instructed that the plaintiffs are entitled to recover” even though the jury believed from the evidence that plaintiffs were guilty of negligence which contributed to the injury of plaintiff,- — the contributory negligence of plaintiff, if any, would be no defense.

Counsel say that the first instruction above mentioned is erroneous for three reasons: (1) that it authorizes a recovery on grounds not alleged in the complaint ; that the only charge of wilful and wanton conduct made against defendant in the complaint is that he drove his automobile at an excessive rate of speed, and that the instruction was not confined to that allegation but included “any act or conduct other than speed which the jury might conclude was wilful and wanton.” (2) That the instruction does not require the jury to find from the evidence there was any “conscious indifference to the rights of others.” It is not enough to recover for wilful conduct, based on high speed, that there be proof of high speed. It must also include knowledge of the presence of the plaintiff or conscious indifference. And (3) that the instructions “told the jury that if the defendant ran his car at a high or dangerous rate of speed or so as to evince a reckless disregard of the rights of others that there could be a recovery, regardless of whether the high speed or the reckless conduct caused or proximately caused the injury.”

We think these objections are hypercritical for it is clear that the only evidence of misconduct on the part of defendant was the claimed excessive speed at which he was traveling; that the jury could in no way be misled on this question. The instruction specifically referred to the question whether the defendant was operating his automobile at such a high, dangerous and reckless rate of speed as to evince a reckless disregard of the rights of others. The question was not at all involved, and the jury could not have been misled. An instruction similar in substance was held unobjectionable in Robeson v. Greyhound Lines, Inc., 257 Ill. App. 278.

The criticisms to the second instruction above mentioned are substantially the same as those leveled at the first instruction, and for the same reasons we hold that the objections made cannot be sustained.

Defendant also complains of two other instructions given at plaintiff’s request, by one of which the jury was told that if it found from a preponderance of the evidence that defendant was operating his automobile at the time in question at a greater speed than was reasonable and proper, having regard to the traffic and the use of the way, so as to endanger the life and limb of any person, and in so doing was guilty of negligence, as a direct result of which plaintiff was injured, then it should find for the plaintiff, provided it found he was in the exercise of due care and caution for his own safety. The objection, as we understand it, is that there was no allegation in the complaint of the violation of any particular statute, that the only charge was that defendant negligently failed to give the right of way to plaintiff in violation of the statute of Illinois. We think this objection is untenable; there is no mention of any statute in the instruction and we think it was proper.

The next instruction to which objection is made told the jury the statute provided that all vehicles traveling upon public highways should give the right of way to other vehicles coming along intersecting highways from the right, and “if you find from a preponderance of the evidence that plaintiffs’ vehicle approached the intersection in question from the right before the defendant approached it, and that the defendant failed or refused to yield to the plaintiffs the right of way, and if you further find that such failure on the part of the defendant was the proximate cause of the collision in question, and that the plaintiff . . . was injured . . . through no fault on his part, then your verdict should be for the plaintiffs.”

Defendant’s contention is that this instruction is wrong because the statute gives the party approaching from the right in such a situation the right of way over the person approaching from the left only when they reach the intersection at about the same time. We think this is a correct statement of the law. Salmon v. Wilson, 227 Ill. App. 286; Heidler Co. v. Wilson & Bennett, 243 Ill. App. 89; Ward v. Clark, 232 N. Y. 195; Fitts v. Marquis, 127 Me. 75, 140 Atl. 909. But defendant is in no position to complain as the instruction was more favorable to him than the law contemplated, because it told the jury that if it found-from the evidence that plaintiff approached the intersection “before the defendant approached it” then, under the circumstances mentioned in the instruction, plaintiff could recover. It is clear that this instruction would require the jury to find that plaintiff had reached the intersection before the defendant, while the law did not put such a burden on plaintiff.

Complaint is also made that the court “erred in allowing the case to go to the jury as to the wilful and wanton count and in giving the interrogatory to the jury.” We think the question whether defendant was guilty of wanton misconduct was for the jury. Walldren Express Co. v. Krug, 291 Ill. 472; Price v. Bailey, 265 Ill. App. 358; Nosko v. O’Donnell, 260 Ill. App. 544. If the jury believed plaintiff’s version of the collision, we think that defendant’s conduct evidenced such a gross want of care and regard for the rights of others as to justify the presumption of wantonness.

We think the evidence was wholly insufficient to show an intent or purpose by defendant to injure plaintiff, but an intent is not necessary under the law. We may surmise a case of an automobile collision at a street intersection where the defendant intended to injure the plaintiff, but those cases do not happen in actual practice. We have never had any such case in this court. The term “wilful” as used in such cases implies intent or purpose, while the term “wanton” expresses a reckless disregard of consequences. Trucking Co. v. Fairchild, 128 Ohio St. 519.

The judgments of the superior court of Cook county are affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Hueeman

text:
    Bertha O. Kroon, Appellee, v. The Travelers Insurance Company, Appellant.
    Gen. No. 9,148.
    Opinion filed April 14, 1937.
    Rehearing denied May 7, 1937.

      Barr & Baer, of Joliet, for appellant.
    Snapp, Heise & Snapp, of Joliet, for appellee.
   Mr. Presiding Justice Hueeman

delivered the opinion of the court.

On September 25, 1934, Emanuel 0. Kroon, of Chicago, made application to appellant company for a policy of life insurance, commonly called term insurance, which was to run for a term of five years, being then convertible into other forms of regular life insurance. The amount of insurance applied for was $10,000. Richard J. Joice, who was working for Joice & Company, insurance brokers of Chicago, secured the application for said policy. He thereupon submitted the same to the agents of appellant company, in Chicago. The applicant was examined and his policy premium was rated up double to that charged for an ordinary risk. The applicant was 39 years of age, five feet ten inches in height, and weighed 227 pounds. The policy issued under date of October 1, 1934. Joice made a number of attempts to deliver the policy to the applicant but was unable to do so, due to his refusal to accept the policy at the increased premium. Joice did make delivery of the policy on November 18th, 19th, or 20th. The actual date when the policy was delivered to the applicant is in dispute. Joice states that it was on November 18th. He signed a written statement to the effect that it was on either November 19th or 20th. A check in the sum of $201.20, in payment of the premium thereon, issued under date of November 20th, and was signed by the applicant’s sister, Isabel G. Kroon. Receipt for payment of the premium issued under date of November 22nd. The check was cleared on November 23rd.

On November 18th, the family physician of the applicant’s family, called at the home of Mr. Kroon to treat one of his children, who was then ill. Mr. Kroon at that time stated to the doctor, he was not feeling well, whereupon the doctor gave him a cursory examination, finding that he was suffering from tonsillitis, a sore throat, a cold in the head, sinusitis, and exhibiting the symptoms of an ordinary cold. This was about nine or ten o’clock on the night of November 18th. The doctor states that Mr. Kroon was lying on the bed and that the only examination he made of him at that time was to look at his throat and note that he had the cold in his head, together with a nasal discharge. The doctor was again called to see Mr. Kroon on the second evening following. At this time he gave him a more pronounced examination. He states that he found nothing definite as to the condition of his lungs. This was on Tuesday. On the next day the doctor received a call at about 5:30 o ’clock in the morning. Hpon answering this call he found evidence of pneumonia. He had Mr. Kroon removed to the hospital. This was on November 21st, and on November 23rd, he died from pneumonia.

The policy in question contains the following provision, “and that the contract issued hereupon shall not take effect unless the first premium shall be actually paid while I am in good health in so far as I have knowledge or information.” Appellant denied liability and among other things set up that at the time the first premium was paid, the applicant was not in good health and that he knew he was not in good health. The jury returned a verdict in favor of the beneficiary, appellee herein, for the full amount due under the policy. The trial court denied the motions of appellant and entered judgment on the verdict. Appellant has prosecuted this appeal therefrom.

The record in this case consists of almost six hundred pages and contains much controverted testimony. It is impossible within the limits of this opinion to undertake any extended review thereof. The testimony of the family doctor, who treated the deceased and who signed the physician’s statement attached to the proof of death submitted to appellant company, is that on the 18th,- when he examined Mr. Kroon, his tonsils were enlarged and inflamed; that he did not examine his heart action or his chest that night; that he was lying on the bed; that he had fever, and he gave him a prescription to be taken for the reduction of temperature. He saw him the next day; and on the following day, in answer to the call made early in the morning, he discovered that the deceased had developed pneumonia. In the doctor’s statement in connection with the proof of death made on January 14, 1935, he states the immediate cause of death to have been acute pleuritis and pneumonia, and that the contributing causes of death were tonsillitis and sinusitis. He further states, “I first saw him, with the above on November 18, 1934.” The doctor was a witness for the plaintiff. An interne at the Michael Keese Hospital, in Chicago, where Mr. Kroon was taken, testified that he took the history regarding his illness, from appellee, his wife, and wrote down the statements and answers given by her to him in the manner in which they were then given; that he did not undertake to secure any information with reference to such history from Mr. Kroon, as he was considered too ill to be disturbed. This witness testifies that Mrs. Kroon said her husband had a chill about 12 days previous and since that time had experienced aching* pains through his chest and back, and since said time had had fever ; that he developed tonsillitis four or five days before coming to the hospital; that he had had a pain in his chest and fever since his chill; that since that time he had remained in bed, but not continuously; that he was a difficult patient to handle and would not stay in bed; that four or five days after he developed the tonsillitis, the pain in his chest became worse and that the doctor had caused him to be brought to the hospital. The hospital record, which was introduced in evidence without objection, discloses that the deceased died from bronchial pneumonia; that he suffered a chill 12 days before, and that since said time had experienced pain through chest and back, with fever; that he developed tonsillitis four or five days previous.

When the vesting of the policy is contingent upon the payment of the first premium, it cannot ordinarily be said there is a consummation of the contract prior to such payment. And if there be a provision that the policy shall not become effective unless the first premium be paid while the insured is in good health, ordinarily, the contract is not consummated unless such premium is paid while the applicant is in good health. When a policy of life insurance is delivered, of necessity it is based on the status of the insured at the time of application, and the premium is determined according to the risks then involved. If, therefore, a material change should occur in the applicant’s health between the date of the application and the delivery or consummation of the contract, the insurer should be informed thereof. Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, 503. Provisions regarding the good health of the applicant, similar to the one contained in this policy, have been held to preclude a recovery where the physical condition of the applicant has become impaired in a manner material to the risk, between the date of the application and the delivery of the policy, and which did not exist at the time of the application. Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83; Nyman v. Manufacturers’ & Merchants’ Life Ass’n, 262 Ill. 300. Where the affliction is one from which the applicant was not suffering at the time of his application and examination for the policy, the insurer cannot be said to have assumed the risk involved, and if the subsequent ill health or disease materially affects the risk, it would appear that such would be a proper defense. Johnson v. Royal Neighbors, 253 Ill. 570, 576; James v. National Life & Accident Ins. Co., 265 Ill. App. 436, 439.

The expression, good health, as employed in insurance contracts, is ordinarily construed to mean a reasonably good state of health. Clover v. Modern Woodmen, 142 Ill. App. 276. It is impossible to set out or define every situation or condition which mig*ht exist, and therefore it becomes the duty of the courts to endeavor to arrive at the real intention of the parties as manifested by the terms and conditions of the contract and the subject matter thereof. Where a considerable time elapses between the application and the consummation of the contract, although the company may assume thereby the risk incident to any of the ailments from which the applicant is suffering at the time of his examination, yet contracts of insurance are essentially of good faith, and under such circumstances if the applicant in the interim contracts sickness or disease from which he was not suffering at the time of his application, and which is material to the risk involved, it cannot be said that the parties contemplated such additional risk by virtue of the contract, and if the same is delivered without knowledge of the applicant’s changed condition in health, the contract does not become effective, unless the insurer sees fit to waive the condition of the policy.

If the subsequent changed condition in health of the applicant did not cause his death or directly contribute thereto, then the same would not become material to the risk involved. Court of Honor v. Dinger, 221 Ill. 176. The death of the deceased does not appear to have resulted from any disease from which he was suffering at the time of the application for the policy. The evidence shows that he died from bronchial pneumonia; that he had a chill 12 days previous, followed by pain in chest, and fever; that he had tonsillitis and sinusitis; and that these continued until he was taken to the hospital with pneumonia. It appears that tonsillitis and sinusitis are predisposing causes to pneumonia. The attending physician’s statement in the proof of death, identifies these two infections, and names them as the contributory causes of death. Pneumonia is an infectious disease.

Courts are inclined to a liberal construction of insurance policies. Tet in this case it appears that the applicant was aware he was suffering with an illness which arose long subsequent to his application and prior to the consummation of the contract; it appears that his illness was of a nature that was predisposing to pneumonia; and that he proceeded to develop pneumonia within a day or two after the family doctor first examined him.

Courts of review are reluctant to set aside the verdict of a jury. Tet, if it appears that the same is manifestly against the weight of the evidence, the judgment thereon will be set aside and the cause remanded for another trial. Baumeister v. Bowers, 271 Ill. App. 332. We are of the opinion that the verdict of the jury was against the weight of the evidence, and that the trial court erred in not granting appellant’s motion for a new trial.

The judgment herein is reversed and the cause remanded.

Beversed and remanded.


author: Mr. Presiding Justice Huffman

text:
    National Lock Co., Appellee, v. The Swords Company, Appellant.
    Gen. No. 9,165.
    Opinion filed April 14, 1937.
    Large & Reno, of Rockford, and Bell, Boyd & Marshall, of Chicago, for appellant; Earl K. Sohiek, of Chicago, of counsel.
    Hall & Dusher, of Rockford, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee entered into a written agreement with appellant for the construction of a power plant. The contract provided that appellant was to submit to appellee the original invoices from the manufacturers, for all machinery and apparatus used in the construction of said plant. The appellant, by the terms of the contract, was to be compensated by being paid a sum equal to ten per cent on the net cost of the machinery and apparatus so purchased. The contract was in the nature of what is commonly called a cost plus contract — the contractor submitting to the other party the original invoices for the actual cost of the machinery and apparatus placed in said plant, and receiving thereon, payment of ten per cent of the net cost of such machinery and apparatus, as its compensation.

The power plant was constructed by appellant. It was discovered by appellee that appellant in violation of the terms of its contract, had not submitted to appellee the original invoices for the machinery and apparatus bought and installed, but that appellant by some manner came into possession of blank invoices of the company from which it was buying such machinery and apparatus, and that during the construction of the power plant, appellant would take blank invoices of such manufacturer, and make copies of the original invoices, but change the net cost price to a larg’er amount, thus breaching its contract in this regard, to the damage of appellee.

Appellee brought this action for the recovery of the money caused to be paid by it to appellant by appellant’s violation of its contract. The fact that a great number of invoices were rewritten and changed, as claimed by appellee, is not in dispute. Appellant, contrary to its written agreement, did not furnish appellee the true original invoices for the machinery and apparatus purchased and used in the construction of the power plant, but did, in fact, make and furnish to appellee spurious invoices, upon, the blanks of the manufacturers, which appeared in all respects as genuine original invoices, but which reflected a greater charge for the merchandise purchased.

The cause was heard by the court, who found that the difference between the amount of money actually due from appellee to appellant under the terms of the contract and the total amount paid by appellee to appellant, because of its wrongful conduct in the violation of its contract, was the sum of $13,104.99, which, together with the interest found due thereon, amounted to the total sum of $21,686.15, for which amount the court rendered judgment in favor of appellee and against appellant.

No evidence was introduced by appellant. New management has succeeded to that in control of appellant company at the time of the foregoing transactions. The evidence clearly established the changes made in the invoices as claimed by appellee and the amounts of such changes. The only question in controversy in this appeal is one of limitations, the appellant urging that the action was a suit for damages for fraud and deceit and became barred in five years. Appellee insists the action was founded upon the written contract between the parties, and for damages resulting because of appellant’s violation thereof, and that such action is not barred except by the ten-year statute. It appears that the case was tried as an action at law against appellant for the recovery of damages alleged to have resulted to appellee because of appellant’s violation of its contract. The parties assumed this attitude in the trial of the case, the court tried it upon that theory and rendered judgment accordingly. “It is well settled that a person cannot try a case on one theory in the trial court and on another in a court of review.” Off v. Exposition Coaster, 336 Ill. 100, 108. To the same effect are: Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 529; Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, 304; Davis v. Illinois Collieries Co., 232 Ill. 284, 291; Fairbank Co. v. Nicolai, 167 Ill. 242; Doughery v. Bliss, 244 Ill. App. 282, 284; Runyan v. Bland, 264 Ill. App. 265, 271.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    A. Bowman et al., Trading as Peat, Marwick, Mitchell and Company, Appellants, v. W. J. Obee et al., Appellees.
    Gen. No. 9,193.
    Opinion filed April 14, 1937.
    Zane, Morse, Zimmerman & Norman, of Chicago, and Hall & Hulse, of Waukegan, for appellants; Franklin D. Tbueblood, of counsel.
    Marvin Wallach, of Chicago, for appellees; Ferdin- and Borohardt, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This case was previously before this court in Bowman v. Obee, 281 Ill. App, 212. It is a mandamus proceeding brought by appellant to compel the town clerk to issue a certificate for the payment to appellants of their claim for an audit of the township records and accounts for the fiscal years of 1932 and 1933, and to compel the supervisor to sign such certificate and to pay same. The amount claimed due by appellants is the sum of $1,577.90. Before the first appeal, the cause was pending* before the Hon. Balph J. Dady. General and special demurrers to the petition were overruled. Answer was then filed, setting up practically the same matters as contained in the demurrers. Special pleas were also filed. Petitioners demurred to the answer and special pleas. At this time, affidavit for change of venue was filed by the defendants. The change was granted. Subsequently, the defendants made motion before the judge then hearing the case that the demurrers filed by the petitioners to the answer and special pleas be carried back to the petition for mandamus. The trial court granted the motion and the petition was dismissed. The petitioners prosecuted an appeal from the order of the court in that case (281 Ill. App. 212). The action of the trial court in that regard was reversed and the cause remanded with directions that the motion of the defendants below to carry the petitioners’ demurrers to the answer and special pleas, back to the petition, be denied, because this court discovered no innate and substantial defects in the petition which would render it insufficient to sustain a writ. People v. Powell, 274 Ill. 222, 224. This doctrine has since been announced in People v. Downers Grove Sanitary Dist., 359 Ill. 601, and Coughlin v. Chicago Park Dist., 364 Ill. 90. A further statement of facts with respect to the first appeal is not here considered necessary, as they are set out in the opinion in that case.

Upon reinstatement in the trial court, Mr. William Steele appeared and filed what he designated as a supplemental answer, in which he set up, among other things, that he was the duly elected and qualified.successor in office of the respondent, Obee, as supervisor of said town. Motion was made to strike the supplemental answer. The cause at that time was again pending before Judge Dady. A change of venue was again taken and Judge Arthur E. Fisher proceeded to hear the case. A series of pleadings took place similar to those involved in the first appeal. The defendant respondents, Obee and Larson, filed a joint answer, Obee filed special pleas, and Larson-filed a separate answer and special pleas. The pleadings were disposed of before Judge Fisher. The motion to strike the supplemental answer of Mr. Steele, was granted in all respects except as to the allegations that he was the duly elected and qualified successor to Obee, and that he had no funds on hands that had been provided for the payment of petitioners’ claim. The petitioners filed demurrers to the joint answer of Obee and Larson. They were sustained in all respects except as to that part of par. 9 of the answer which alleged no funds available to pay petitioners’ claim. Demurrer was sustained to separate answer of Larson, and demurrer sustained to special pleas of Obee and Larson, except as to allegations, that no funds were available to pay petitioners’ claim. Therefore, the only question involved in the hearing of the case before the court was whether the respondents had funds on hands which were available for the payment of the claim. The trial court found against petitioners, denied the writ, and dismissed the petition, with judgment for costs. This appeal has been prosecuted from the action of the trial court.

The court in sustaining demurrers to all answers and special pleas, except as to the single question of the availability of funds with which to pay the claim, in effect found that the defenses sought to be set up in the answers and special pleas constituted no defense to the petitioners’ right to the writ as a matter of law; and that the only question to be determined was whether the defendant respondents had available funds on hands at that time which could be applied upon payment of the claim. Under such circumstances, the petition itself should not be dismissed. As stated in People v. Secretary of State, 58 Ill. 90, at p. 94, “If the State has received the services or property of an individual under a contract, there would seem to be no doubt that it would be the duty of the auditor to draw a warrant for the sum due, and of the treasurer to countersign it, and to deliver it to the person entitled to receive it, whether there be money in the treasury or not, for its payment. This the law at least requires, and also that it be paid when funds are provided for the purpose. If there is no money in the treasury for the payment of a proper claim, when the warrant issues, it should be paid when there are funds.” The above statement is quoted with approval in People v. Lippincott, 72 Ill. 578, at p. 581. It is said in this case that the petitioner should be paid whenever there are funds on hand available for such purpose, and that under such circumstances, he is entitled to the writ of mandamus. The above cases are cited with approval in People v. Stevenson, 272 Ill. 215. In this case it is said that the issuing, signing, and countersigning of a warrant upon the proper fund may be compelled by mandamus where it clearly appears the same is properly due and payable, or has been audited and allowed (p. 221). We thus find that an answer by the respondents that there is no money available with which to pay a claim is not a bar to this proceeding. If the petition was alone for a writ to compel the payment of the money, then the answer of respondents that there was no money available with which to pay the claim, would be conclusive of the case, and if it appeared no such funds were available, the answer would be a bar to the relief. People v. Secretary of State, supra, p. 94. But here, the prayer is that the town clerk issue a certificate for the claim, and deliver it to the supervisor, who shall countersign and pay same.

It appears by the testimony of appellee, Larson, respondent and town clerk, that the claim of appellants was audited and allowed at a meeting of the board of town auditors, and so recorded in his original record book, kept by him. Contracts mark the progress of civilization. They are at the base of the stability of the present and the future. The continued existence of the political institutions of this country is incompatible with public repudiation of contracts and financial obligations.

Since Mr. Steele, the present supervisor, has voluntarily entered his appearance in this case, it will not be necessary that an alias writ be awarded against him, as the successor in office to Obee. People v. Supervisor, 100 Ill. 332; State Board of Equalisation v. People, 191 Ill. 528, 541; People v. Lueders, 287 Ill. 107, 117; People v. DeYoung, 298 Ill. 380, 385; People ex rel. Burgeson v. West Chicago Park Com’rs, 275 Ill. App. 387, 395.

The supervisor carried two bank accounts, one of which was designated as the general fund. The average balance in this fund during* the period of time involved in this case, was about $10,000. In June, 1933, there was a balance of $19,616.72; in April, 1934, a balance of $10,316.97; in December, 1934, a balance of $20,976.89; in April, 1935, a balance of $11,203.97, and in June, 1936, a balance of $9,204.71. It appears by the holding in Cincinnati, I. & W. Ry. Co. v. People, 213 Ill. 197, that claims and demands audited by the board of town auditors should be paid immediately, if there is sufficient money in the proper fund (pp. 203, 204).

This cause is reversed and remanded with directions that the trial court issue the writ of mandamus as prayed, directed to the respondents commanding them that they shall issue, sign and deliver to appellants a certificate for the payment of their claim, and pay thereon any money available for such purpose; and if said respondents do not have funds on hand available for the payment thereof, that they shall proceed to take steps in the manner provided by statute to make such funds available for the payment of said claim.

Reversed and remanded with directions.


text:
    Mildred R. Wainwright, Appellant, v. Lee McDonough et al., Appellees.
    Gen. No. 9,194.
    Opinion filed April 14, 1937.

      Gerald C. Snyder, of Waukegan, for appellant; Lewis D. Clarice, of Waukegan, of counsel.
    George Gillette and Charles F. Grimes, both of Chicago, and Runyard & Behanna, of Waukegan, for certain appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This case comes to this court by transfer from the Supreme Court (364 Ill. 626). A bill of complaint was filed by appellant in the circuit court of Lake county. Mr. J. E. Bairstow, an attorney of said county, was appearing as the attorney of record for appellant on April 28, 1936, pursuant to his appearance entered as such attorney, filed April 23, 1929. On April 28, 1936, the court dismissed appellant’s bill for want of prosecution. Appellant on May 15,1936, filed a written motion to vacate that order, by her attorney of record in this appeal, which motion the court denied. Appellant has prosecuted this appeal from the last mentioned order of the court denying her motion to vacate the order of dismissal.

On April 28, 1936, appellant’s attorney of record, J. E. Bairstow, caused notice to be mailed to appellant at 119 North Genesee street, in Waukegan, Illinois, notifying her that he would on that day ask leave of court to withdraw his appearance as her attorney, and further notifying- her of a motion filed by appellees to dismiss her suit for lack of prosecution. The order of dismissal was entered by the court on that day. It appears by appellant’s motion to vacate that since July, 1932, she had been employed in the city of Washington, D. C.; that the above address was the home address of her mother, but that prior to the mailing of said notice, her mother had been removed to a hospital, and later taken from the hospital to the State of Florida; and that the notice as mailed by said attorney did not reach appellant until in May, 1936. Upon receipt of the notice, appellant caused her motion to be filed on May 15,1936, to vacate and set aside the order of dismissal.

Courts have inherent power, in the interest of justice, to dismiss suits for want of prosecution. No attorney or solicitor can withdraw his name, after he has once entered it on the record, without leave of the court. Walton v. Sugg, 61 N. C. 98, 93. Am. Dec. 580, 582; United States v. Curry, 6 How. (U. S.) 106, Ill. The relation of attorney and client is one which either party may terminate prior to the conclusion of the litigation, but an attorney cannot alone and of himself terminate the relation, to his client’s injury, and without the client’s consent, except upon giving to the client a reasonable notice in order that the latter may be afforded an opportunity to procure other counsel. People v. Sullivan, 279 Ill. 634, 646; Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263, 266; Powers v. Manning, 154 Mass. 370, 28 N. E. 290, 13 L. R. A. 258; Genrow v. Flynn (Annotations) 35 L. R. A. (N. S.) 963. While the relationship may be terminated as between the attorney and client, yet an attorney seeking to withdraw as an attorney of record should make known to the court, and by proper application thereto, have the relation formally terminated. Krieger v. Krieger, 221 Ill. 479; Hollan v. Kepner, 297 Ill. 332; Jacobson v. Ashkinaze, 337 Ill. 141.

Whether the notice of withdrawal given by the attorney to his client is reasonable is to be determined from the circumstances in the particular case. In this case it appears that the notice mailed to appellant advising her of the withdrawal of her attorney did not reach her until the month following the mailing of the notice. This is clearly explained by the fact that appellant was living in the city of Washington, D. C., and that her mother at the time was either in the hospital or had been taken to Florida. It is also apparent that appellant proceeded to file her motion to vacate the order of dismissal promptly upon receipt thereof. Due to a mistake of fact in assuming that the notice had reached appellant in the ordinary course, her attorney and the court acted in the manner above set out. From an examination of the record we are of the opinion that the circumstances of the case should require that appellant have a reasonable notice of the intention of her attorney of record to withdraw as such. There is no dispute that she had no such notice. Under the circumstances, we are of the opinion that the motion of appellant to vacate and set aside the order of dismissal should have been granted. The order and judgment of the circuit court is reversed and. remanded with directions that the order of dismissal as entered herein be vacated and set aside.

Reversed and remanded with directions.


author: Mr. Justice Dove

text:
    Harold Gombi et al., Appellees, v. Taylor Washing Machine Company, Appellant.
    Gen. No. 9,150.

      Opinion filed February 8, 1937.
    Rehearing denied May 7, 1937.
    Mulcahy, Murphy & Walsh, of Chicago, for appellant; Michael F. Mulcahy and Ashley Greene, of Chicago, of counsel.
    Charles A. O ’Connor and Frank Reid, Jr., both of Aurora, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On January 28, 1936, a complaint was filed in the circuit court of Kane county by Harold Gombi, his wife, Augusta C. Gombi, and 29 other plaintiffs against the Taylor Washing Machine Company, a corporation. Subsequently by leave of court an amended complaint was filed on June 25, 1936. This amended complaint was filed by Harold Gombi, Augusta Gombi and 19 of the other original plaintiffs. It alleged that the defendant was a corporation engaged in the business of selling washing machines for household use and employs agents in Aurora who engaged in a series of transactions with the plaintiffs during the months of December, 1935, and April, May and June, 1936. The amended complaint further alleged that these agents represented to the plaintiffs that the washing machines which they sold were of superior quality and three-ply enamel; that the wringer was equipped with grease sealed roller bearings on the four ends of the rollers; that the rollers of the wringer were gear driven; that the tub was full porcelain, double vacuum insulated and would not rust; that all the moving parts were fully inclosed; that the gears were bronze and the casters were made of rubber. The amended complaint further averred that the plaintiffs relied upon these representations at the time they ordered washing machines of the defendant sent to their homes for free trial and demonstration; that these representations were knowingly made and were false in that the machines were only painted with one coat of paint; that the wringer had wooden bearings; that only one roller was gear driven; that the tub was of sheet metal, was not insulated and it did rust; that the moving parts were not inclosed and that the gears and casters were steel. The amended complaint further averred that the machines were sent to plaintiffs’ homes on trial and without cost to the plaintiffs and that the plaintiffs could return the machines at the end of two weeks without any cost; that the plaintiffs on delivery and on numerous other occasions requested the defendant to take back the machines but the defendant refused to do so. It was further averred that the plaintiffs signed a receipt in order to show that they had machines in their possession; that the agents of the defendant so represented the paper which they signed, but the plaintiffs allege that the said agents folded said paper and concealed the contents thereof so that the plaintiffs conld not read the same when they signed it; that said paper is in fact a conditional sales contract and contained provisions whereby the wages of the purchaser were assigned to the defendant in the event the purchaser fell behind in his payments. The amended complaint further alleged that the defendant represented that the plaintiffs could leave the washing machine in their homes; that salesmen of the defendant would bring customers into the homes of the plaintiffs and demonstrate the machine to them and from each sale that resulted from such demonstration that the plaintiff in whose home it was demonstrated was to be given credit for $5 on the purchase price of the machine. It was further averred that numerous demonstrations were given and sales made therefrom but that the plaintiffs were never given credit as they had been promised. The amended complaint further averred that the defendant stated to the plaintiffs that if they were not satisfied with the machine it would be exchanged for a Voss or Maytag or any other make of washing machine that the plaintiffs desired; that the plaintiffs have expressed their dissatisfaction with the machines and have asked the defendant to replace them with machines of other makes, but the defendant has wrongfully failed and refused so to do. It is further averred that the defendant fraudulently and knowingly changed the price on said alleged agreement entered into with the plaintiffs from $49.50 to $89.50; that the defendant has attached or garnisheed wages of persons who did not sign the alleged agreement and has attached the wages of the plaintiffs from the Lyon Metal Products Company, the Chicago, Burlington and Quincy Railroad Company, the Illinois Bell Telephone Company, the Independent Pneumatic Tool Company, the McCredie Oil Company and from the Consolidated Paper Company. It is further alleged that the defendant has started many suits in the municipal court of Chicago of which the plaintiffs had no notice and no opportunity to bring to the court’s attention the facts as in the complaint alleged; that the defendant has secured judgment against some of the employers above named and-some of the employers have paid over cash to the defendant under such judgments; that other of the above named employers are now holding back wages of the plaintiffs under a notice of wage assignment served on them by the defendant and are about to turn such wages over to the defendant unless restrained by this court; that the defendant has threatened to continue to enforce said wage assignment and the plaintiffs fear it will do so unless restrained by the injunction of this court, and that unless the defendant is restrained from continuing with such wage assignment proceedings, the plaintiffs will suffer great and irreparable injury and loss, for which there is no adequate remedy at law. The amended complaint prayed that a writ of injunction issue restraining the defendant from commencing any action in any court upon the alleged contracts signed by the plaintiffs and from proceeding further in any manner under said contracts until the further order of the court; that the defendant be required to account for all moneys received by and paid to it by the plaintiffs and by their employers and that the defendant be required to pay to the plaintiffs whatever amount shall appear to be due them.

This amended complaint was verified by the affidavit of 10 of the plaintiffs which recites that in some instances their wages had been held up and in other instances were being held up under the wage assignments so that the jplaintiffs were seriously hampered in buying the necessities of life; that many suits had been started in the municipal court of Chicago on some of these wage assignments, of which the plaimtiffs had no notice and no opportunity to defend; that in the cases that have been started, court costs, attorney fees and other incidental expenses have been added onto the purchase price designated in these contracts and these charges have been paid by the employers of the plaintiffs and were charged by said employers to the plaintiffs; that affiants are possessed of insufficient property to give bond and are unable to give bond as a condition precedent to the issuance of a writ of injunction. As a part of the amended complaint a copy of a conditional sales contract dated May 16, 1935, is attached. This contract is signed by Leroy Newton and Angeline Newton, two of the plaintiffs, and contains an obligation by them to pay the defendant $89.50. The instrument recites that of this amount $2 has been paid in cash and the balance of $87.50 is to be paid in monthly instalments of $5 each, the first payment to be due on June 15, 1935. The title to the washing machine is reserved to the defendant until the entire amount is paid and underneath the sig natures of these two plaintiffs and the signature of the witness these words appear, “This washer not on trial.” Upon the same day that the amended complaint was filed, a preliminary injunction was issued without bond, which restrained the defendant from instituting or commencing any action in any court in this State upon the alleged contracts signed by the plaintiffs and from proceeding further in any manner on said contracts, attachments, garnishments and wage assignments until the further order of the court.

Thereafter the defendant filed its motion to dismiss the amended complaint and to dissolve the temporary injunction and vacate the order directing* the same to issue on the grounds that it was issued without bond; that each plaintiff has an adequate remedy at law; that the plaintiffs’ causes of action are several and arise out of separate and distinct transactions; that the allegations of the complaint are vague, indefinite and uncertain; that the separate causes of action cannot legally and properly be consolidated in one complaint and that the alleged facts contained in the amended complaint are insufficient to confer jurisdiction on a court of equity or to warrant the relief sought. This motion to dismiss the amended complaint and to dissolve the temporary injunction was denied and from that part of the order which denied defendant’s motion to dissolve the temporary injunction this appeal had been prosecuted.

It is insisted by counsel for appellant that a complaint joining separate and distinct claims of individuals arising out of separate and distinct transactions is multifarious, insufficient to support an order granting a preliminary injunction and that the allegations of the complaint state a cause of action for which there is an adequate remedy.

In Crawford-Adsit Co. v. Fordyce, 100 Ill. App. 362, it appeared that the defendant caused two of its solicitors to call upon engineers along the line of the Erie Railroad between New York and Chicago for the purpose of soliciting subscriptions to a book, that one or the other of the solicitors visited the complainants and induced some of them to subscribe for a copy of the book by false and fraudulent representations. Thereafter 68 persons joined in a suit to cancel the several contracts and to enjoin the defendant from prosecuting certain actions in attachment and garnishment which had been instituted. In reversing the order of the circuit court which had granted a preliminary injunction the Appellate Court said: “A bill is multifarious when it seeks to litigate several claims which are in their nature separate from and have no relation or dependence upon each other (citing authorities). In the present case it appears that the representations and promises to the several complainants, as well as the contracts, were several and distinct. It does not appear that the representations were by a circular or prospectus of which each complainant received a copy, while apparently the representations and promises were made to the several subscribers at separate times. Nor has one complainant any pecuniary interest in the contract of another. The interest of each is several and distinct; relief granted to one will be of no benefit to another. Six of the complainants deny that they subscribed; it is manifest that the issue they present is essentially unlike the case set forth by the others. With those who deny ever entering into any contract, the only question for trial is, did they subscribe, not, upon what representations were they induced to do so. The bill is therefore clearly multifarious. ’ ’

Williams v. Harper, 127 Ill. App. 619, was a suit by 10 graduates of Northwestern University to reform a contract which they had entered into with the defendants by the terms of which they had each subscribed for a four-volume history of Northwestern University. The bill of complaint averred that the publication was to contain a biography of all the subscribers; that a verbal representation to that effect was made to the complainants by the defendants and that they signed a printed slip believing that it contained the promise and guarantee that the work when published would be as verbally represented, but the bill charged that the defendants caused to be printed above their signatures an order, contract or agreement for the purchase of said history at the price stated without any mention made of any biographical sketch of the complainants. It was further averred that the defendants sought to deliver the history and' collect therefor the subscription price; that the complainants refused to accept or pay for the same and thereupon the defendants instituted two suits against two of the complainants, one of which had gone to judgment in favor of the defendants and it is feared a like result will happen in the other and that other suits are threatened against the other complainants. The circuit court granted a temporary injunction restraining the defendants from instituting any suits at law or issuing any execution apon any judgment which it had recovered and in reversing that order the Appellate Court said: “The bill is multifarious in that it seeks to join and deal with interests as a whole which are not joint and which have no such relation to each other as would justify a court of equity in adjudicating upon them in one action. The contracts, the avowed subject-matter of the bill, are separate and distinct engagements between the defendants and each individual complainant. There is no averment from which even a consent of action can be drawn or that one contract in any manner rests upon any one of the others, either for its primal or final execution. They are not even contemporaneous in point of time of execution. No one complainant, so far as appears from the averments of the bill, had any knowledge of the dealings of his co-complainants with defendants in the matter of making the contract for subscription or that such contract of subscription had been made, or that a subscription was procured from any one of the complainants in the faith of any existing subscription with any co-complainant. Each seems to have acted in the matter entirely independent of the other. ’ ’

Counsel for appellee cite no authorities which state any different rule than that announced by these and other authorities but insist that multifariousness was not one of the g*rounds set up in appellant’s motion to dissolve and therefore it cannot be raised for the first time in this court. In this counsel are in error as the second grounds stated in appellant’s motion was that “plaintiffs’ alleged causes of action, if any there be, arise out of separate and distinct transactions between defendants and each plaintiff respectively: and said separate causes of action cannot legally be consolidated by plaintiffs collectively in one complaint. ’ Counsel for appellees, however, do call our attention to section 23 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, 151; Jones Ill. Stats. Ann. 104.023, and insist that the only question for determination is whether, if these appellees had brought separate actions, a common question of law or fact would have arisen. This section provides: “Subject to rules, all persons may join in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons had brought separate actions any common question of law or fact would arise.” In our opinion this provision simply extends equity practice as to joinder of parties and causes of action, to actions at law. It will be noted that this section restricts the joinder of causes of action to actions arising out of the same transaction or series of transactions and which involves a common question of law or fact. As pointed out by counsel for appellant, section 23 of our Practice Act is the same as section 209 of the New York Practice Act and in Akely v. Kinnicutt, 238 N. Y. 466, that court had under consideration a complaint where 193 plaintiffs joined in charging that they were defrauded by being induced to purchase stock at a price greater than its value by means of a false prospectus. In the course of its opinion the New York court said: “It is not only necessary to' the joinder in one complaint of causes of action under the statute in question that they should involve a common question of law or fact but it is also necessary that they should arise out of the same transaction or series of transactions.”

The equity rule prior to the adoption of section 23 of the Practice Act required, as to joinder, that the bill of complaint disclose that the relief to which each plaintiff was entitled arose out of the same transaction or series of transactions and that there should be a common question of fact or law applicable. Section 23 of the Practice Act simply extends this equity rule to actions at law and does not in any way affect the prior holdings of our courts as to multifarious bills. We are not unmindful that section 26 of the Practice Act, Ill. State Bar Stats. 1935, ch. 110, U154; Jones Ill. Stats. Ann. 104.026, provides that no action shall be defeated by misjoinder or nonjoinder of parties but the objection to this amended complaint is not misjoinder of the parties but multifariousness. In Hitchcock v. Reynolds, 278 Ill. App. 559, cited by counsel for appellees, the court sustained judgments rendered in favor of five parties who united as plaintiffs in one suit and who had recovered wages due on separate and distinct contracts and in Smith v. Courtney, 281 Ill. App. 530, also cited by appellees, it was held that it was not improper to join as plaintiff five persons who were injured in the same automobile accident, it being pointed out that their respective claims all grew out of the same transaction. Our holding in the instant case is not in conflict with these cases.

What was said of the averments in the bills in Crawford-Adsit Co. v. Fordyce, supra, and Williams v. Harper, stipra, could be said of the amended complaint in the instant case. The representations to the several plaintiffs and the contracts were several and distinct, apparently made at separate times. Ho plaintiff has any pecuniary interest in the contract of any other plaintiff. Bach contract is the separate and distinct agreement of the defendant with each individual plaintiff. While the complaint asks “for an accounting by defendant of money and merchandise received by it by reason of said contracts,” still there are averments in the complaint to the effect that the signatures of the plaintiffs to the contracts were obtained by fraud and circumvention and that the only instrument which any plaintiff executed was a receipt. The allegations of this amended complaint are not as definite and as certain as good pleading requires and it is apparent that the several causes of action of the several plaintiffs arose out of separate and distinct transactions and do not involve any common question of law or fact.

In the instant case the amended complaint averred that the defendant had started many suits in the municipal court of Chicago and prayed for an order restraining defendant from proceeding further on the contracts, attachments, garnishments and wage assignments referred to in the complaint until the further order of the court. The order entered by the chancellor restrained the defendant from proceeding further in any manner on the contracts, garnishments and wage assignments. Sec. 9, par. 3 of the Practice Act, Ill. State Bar Stats. 1935, ch. 110, H137; Jones Ill. Stats. Ann. 104.009, provides that actions for injunctions to stay proceedings at law shall be brought in the county in which the proceedings at law are had. By the order entered in this case appellant was restrained from proceeding any further with any of these suits then pending in the municipal court of Chicago, which is in Cook county. This suit was brought in Kane county and under the provisions of the Practice Act that portion of the order was erroneons.

Counsel for appellees further argue that the granting of a temporary injunction was a matter of discretion with the trial judge and insist that to have allowed the defendant to proceed in its attachment and garnishment proceedings would not only have deprived appellees of money which they needed to buy the necessities of life but would have done untold harm and irreparable injury. “It is fundamental,” continue counsel in their argument, “that a temporary injunction will issue in cases where fraud, deceit and misrepresentation are alleged, especially where no great inconvenience will result to the defendant and where great harm is likely to come to the plaintiffs. The defendant,” they say, “can not possibly be injured by the granting of this temporary injunction as the money is still in the hands of the employers and if it should be determined upon a hearing on the merits that the plaintiffs have no case, the injunction will be dissolved and the money will be turned over to the defendant.” It is also fundamental that where there is an adequate remedy at law equity will not take jurisdiction and in the case of Hinson v. Ralston, 100 Ill. App. 214, the court said: “Injunctions are not granted because they will do no harm. He who asks for an order of court must show that he is entitled thereto. ’ ’

The portion of the order appealed from is reversed and the cause is remanded to the circuit court with directions to sustain the motion to dissolve the preliminary injunction and to vacate the order of June 25, 1936, awarding such preliminary injunction.

Reversed and remanded with directions.


author: Mr. Justice Wolfe

text:
    William C. Hubbell, Appellee, v. Fidelity Life Association, Appellant.
    Gen. No. 9,196.
    Opinion filed April 14, 1937.
    Charles E. Sturtz, of ICewanee, and John W. Leedle, of Wheaton, for appellant; William C. Ewan, of Kewanee, of counsel.
    Runyard & Behanna, of Waukegan, for appellee; William R. Behanna, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Mystic Workers, a fraternal beneficial society incorporated under the Illinois Fraternal Society Act in force prior to July 1, 1936, issued its benefit certificate to Albert Sauer, one of its members, for the sura of $2,000 payable upon Ms death to Ms wife, Margarethea Sauer, the beneficiary named in the certificate by Albert Sauer. After the certificate was issued, the name of the Mystic Workers Society was changed to Fidelity Life Association. Margarethea Sauer died September 26, 1924, and on August 20, 1932, the assured executed in due and regular form, the certificate of change of beneficiary attached to the benefit certificate and therein he designated, “The First Lake County National Bank of Libertyville, Illinois, as trustee under Trust #56,” as the beneficiary of the benefit certificate.- William C. Hubbell has succeeded the bank as trustee under trust #56. The Fidelity Life Association never consented to the change of beneficiary as made by Albert Sauer. Albert Sauer died October 20, 1934, and on March 28, William C. Hub-bell, as successor in trust under trust #56, filed in the circuit court of Lake county his complaint against the Fidelity Life Association, basing his right of action on the benefit certificate and the executed certificate of chang’e of beneficiary attached to the benefit certificate. The suit is in law between the said trustee, plaintiff, and the Fidelity Life Association, defendant. The cause was heard before a judge without a jury and judgment was rendered in favor of the plaintiff.

The controlling point in the case is whether the trustee named in the trust agreement creating trust #56, was an eligible beneficiary of the benefit certificate. The certificate provided that: “The by-laws of the Mystic Workers now in force, or as hereafter modified, amended or enacted, are hereby referred to and made a part of this contract as fully as if set forth in full herein. ’ ’ When the certificate was delivered to Albert Sauer, he signed a statement reciting: “I accept this certificate and agree to all the conditions herein contained.” If the trustee named in the trust agreement was not an eligible beneficiary under the by-laws in force at the time the change of beneficiary was asked, the disposition of the proceeds of the certificate is governed by the by-laws of the defendant. (Catholic Knights of America v. Franks, 137 Ill. 118.) In 1934 the constitution and by-laws of the defendant provided that in the event a beneficiary’ named in a certificate predeceased the member, and if no other designation of a beneficiary is made by the member, and if member left surviving no widow, child, or children, and if no child or children nor descendants of such child or children, the benefits shall be paid to such person or persons who may be entitled to the same under and in accordance with the statute of the State of Illinois on the subject of “Descent.” The by-laws of the defendant (in force 1930-1934) provided as follows: “No suit at law or in equity shall be maintained against the Association upon any death, accident or disability claim, unless said suit shall be brought within one year after the death, accident or disability on which said claim is based. All claims upon which suit is not so brought shall be forever barred.” (Martin v. Reserve Association, 200 Ill. App. 359; Cunat v. Supreme Tribe B. H., 157 Ill. App. 138.) Albert Sauer left him surviving a brother and a large number of nieces and nephews as his only heirs-at-law.

It is contended by the defendant, that the question of the eligibility of the plaintiff as a beneficiary of the certificate depends on the construction of the trust agreement, and the legal force and effect of certain clear provisions thereof, which was made by Albert Sauer and the First Lake National Bank of Liberty-ville, on August 20, 1932, creating' what is designated “Trust #56.” It is also argued by the defendant that the trust instrument does not include within its terms the benefit certificate as a part of the trust estate. It is further contended that provisions of the trust agreement empowers the trustee to divert pro-coeds of the benefit certificate to purposes and uses prohibited by statute.

The terms of the statute referred to, were, in 1932, as follows: “Any such society, order, or association, may create, maintain and disburse a reserve fund in accordance with its constitution and by-laws. Such reserve fund, if any, shall represent certain prescribed accumulations or percentage retained for the benefits of its members or their beneficiaries and no part thereof shall be used for expenses, nor for any purpose except the payment of death and disability claims.” “The money or other benefit, charity, relief, or aid to be paid, provided or rendered by any society authorized to do business under this act, shall not be liable to attachment by trustee, garnishee or other process, and shall not be seized, taken, appropriated, or applied by any legal or equitable process, or by operation of law to pay any debt or liability of a certificate holder, or any beneficiary named in a certificate, or of any person who may have any right thereunder.” The amount to be paid under the benefit certificate now in question was protected by a reserve fund of the defendant. In the case of National Union v. Keefe, 263 Ill. 453, it is stated: “ It is sometimes specially provided that such fund shall not be liable to be applied by any legal or equitable process to the debts of either the member or the beneficiary. The object is to make it certain that the fund shall be paid only to the persons within the terms of the act, and the designation of a creditor as a beneficiary, unless creditors are within the terms of the act, is absolutely void.” These statutory provisions could not be waived by the defendant. (Grand Lodge A. O. U. W. v. Ehlman, 246 Ill. 555.) They were binding on the certificate holder and prevented him from directing that the proceeds of the certificate be used to pay his debts or be paid to persons not designated as beneficiaries by the terms of the act. This was true whether the member designated a beneficiary according to the constitution and by-laws of the society or by some other means of designation.

Before stating the terms and provisions of the trust agreement, it is deemed advisable to quote from the constitution and by-laws of the defendant, in force 1930-1934, providing as follows: “The payment of death benefits shall only be made to the families, heirs, wife, husband, father-in-law, mother-in-law, son-in-law, daughter-in-law, (brother-in-law, sister-in-law, by-laws 1934) step-father, step-mother, step-children, step-brother, step-sister, children by legal adoption, parents by legal adoption, affianced wife, or affianced husband of the member, a person or persons upon whom the member is dependent, a person or persons dependent upon the member, or to a trustee for the sole benefit of any person or persons within the above classes, and to such other person or persons as the statute may from time to time permit. ... No beneficiary shall have or obtain any vested interest in such benefits until the same has become due and payable upon the death of the members.” This provision of the by-laws was in the identical words of the statute in force 1930-1934, naming the classes as eligible beneficiaries. Bearing on the question presented in this case, it is stated that the benefit fund of the defendant was created and was to be paid out for the sole use and benefit of the person or persons within the classes mentioned in the said by-laws and the statute. (Bacon Ben. Society, secs. 168, 244; Royal League v. Shields, 251 Ill. 250; National Union v. Keefe, supra.)

On August 20, 1932, Albert Sauer entered into a written trust agreement with the First Lake County National Bank of Libertyville, which agreement created what is herein known as Trust #56. The agreement provided that the plaintiff should be the successor in trust upon the dissolution of the bank. The plaintiff has succeeded the bank as such trustee. The agreement recited that the bank had received from Albert Sauer certain property, consisting chiefly of promissory notes, shares of stocks and bonds, specifically enumerated and described in the agreement. It contained no provision providing that additional property might become a part of the corpus of the trust created. The agreement sets forth specifically the duties of the trustee, and among others, that upon the death of Albert Sauer the balance of the trust funds in the hands of the trustee should be disposed of as follows: First, by the payment of all debts and funeral expenses of Albert Sauer. Second, that the household furniture and effects in his home should be divided among certain beneficiaries named in the agreement. Third, that the sum of $1,000 should be paid to the trustees of the Evangelical Church at Long Grove, in the town of Vernon, Lake county, in trust. Fourth, that the sum of $250 should be paid to the Evangelical Home for Children and Aged at Benson-ville, less any payment or contribution made by Albert Sauer during his lifetime to said home. Fifth, the payment of $500 to Charles Armbruster, a nephew of Albert Sauer. Sixth, to distribute or pay all the rest, residue and remainder of said trust fund into eight of Albert Sauer’s nieces and nephews, share and share alike. The trust agreement also provided as follows: “The interest of the beneficiaries of said trust and each and every one of them are not subject to assignments, either voluntary or involuntary except that the same shall descend to the administrator or executor of said beneficiaries at their death, but said interests are payable to the beneficiaries in their own proper person when and according to the terms of this trust agreement. ’ ’

Under date of August 18, 1932, the said bank wrote to the defendant society inclosing the benefit certificate and- requested that the beneficiary be changed from Margaretlia Sauer to “The First Lake County National Bank of Libertyville, as Trustee under Trust #56, Libertyville, Illinois.” The defendant replied to this letter on August 24, 1932, and requested that the bank send a copy of the trust agreement to them, and inclosed a form of “Bequest for Chang*e of Beneficiary,” together with a copy of the defendant’s bylaws relative to beneficiaries. Under, date of August 26, 1932, the bank forwarded to the defendant a copy of the trust agreement and advis'ed them that the bank was asking Albert Sauer to sign a new request for change of beneficiary and that the bank would forward the application as soon as it was received. Under date of August 30, 1932, the bank forwarded to the defendant the benefit certificate with the beneficiary changed and re-named as “The First Lake County National Bank of Libertyville, as. Trustee under Trust #56 Libertyville, Illinois.” Under date of September 9, 1932, the defendant returned the certificate and informed the bank that in the opinion of their attorney, they could not comply with the request of Albert Sauer to name the bank as beneficiary of the certificate as requested. On September 13, 1932, the bank by letter asked the defendant to inform them of the part of the trust agreement which prevented them from naming the beneficiary as requested. The bank also stated that all the other property of Albert Sauer had come into the trust and that if necessary the trust could be amended to cover any reasonable objection raised by the defendant’s attorney. In answer, under date of September 14, 1932, the defendant forwarded to the bank, a letter from Charles Sturtz, its attorney, dated September 8, 1932, in which he pointed out: First, That the trust agreement as then prepared, did not include the benefit certificate, and that the certificate did not fall within the terms of said instrument. Second, that the bank could not be named as beneficiary legally under such trust agreement because the trustee was authorized to pay from the trust funds all debts and funeral expenses of Albert Sauer. Third, that the benefits collected on the certificate could not be used for such purposes, nor could the certificate be made payable to the insured estate, but must be paid to someone who was entitled to receive the same under the statute. Fourth, that if the trust agreement directed and authorized the trustee to pay the proceeds from such insurance to certain relatives of the insured who were recognized under the statute and the laws of the defendant as legal beneficiaries, then there would be no objection. This last letter terminated the correspondence relative to the change of beneficiary, and the defendant received no further advice as to what action had been determined upon by Albert Sauer.

The statute named as an eligible beneficiary of the benefit certificate, ‘‘ a trustee for the sole benefit of any person or persons within the above classes.” Thus the statute by express terms limited the proceeds of a certificate to the sole benefit of the beneficiaries named in the statute. Neither expressly or by implication did the statute confer upon the member, or certificate holder, any interest or property in the benefit fund of the defendant which could be impressed with a trust providing for the payment of the debts of the member or making gifts in trust to persons not eligible as beneficiaries of the benefit certificate. To hold otherwise would permit a diversion of the benefit fund of the defendant for purposes not permitted by the statute and foreign to the object and aim of beneficial societies which limit the persons, who may be beneficiaries of its benefit fund, to those who are heirs, relatives or dependents of its members. (Grand Lodge v. Ehlman, supra; Bacon Ben. Society, sec. 168.) The member of a fraternal benefit society has, himself, no property interest in the benefit fund of the society.- He has the right to provide such a fund and the power to dispose of the proceeds of Ms certificate arising ont of such fund by the designation of a beneficiary of the certificate who is eligible under the statute and the contract of insurance. Otherwise, the member cannot control or dispose of the fund. It has been held that a member of a fraternal beneficial society cannot impress the proceeds of a benefit certificate with a trust in favor of Ms creditors or estate. Boasburg v. Cronan, 9 N. Y. Supp. 664; Finnell v. Franklin, 55 Colo. 156, 134 Pac. 122; Warner v. Modern Woodmen of America, 67 Neb. 233, 93 N. W. 397; Cowin v. Hurst, 124 Mich. 545, 83 N. W. 274; Peek v. Peek, 101 Ky. 423, 41 S. W. 434; Niblack, Ben. Society, sec. 208; Bacon Ben. Society, sec. 244 (a).

When Albert Sauer executed the change of beneficiary certificate, the constitution and by-laws of the defendant provided as follows: “Any benefit member in good standing, desiring to change his beneficiary, or reduce the amount of his certificate, shall make application to the secretary’s office in writing, designating changes desired. No change in beneficiary shall be effective until the new certificate, or the old certificate with such change entered thereon, shall be received by the member while living.” This provision of the constitution and by-laws was a part of the contract of insurance. The plaintiff must look to the trust agreement to invest his precedent trustee with eligibility as a beneficiary of the benefit certificate at the time the change of beneficiary was asked. The defendant was justified in refusing to recognize or acknowledge the trustee-beneficiary designated by Albert Sauer, as he failed in Ms lifetime to name an eligible beneficiary of the certificate.

For the reasons as above stated, the judgment of the lower court is hereby reversed.

Reversed.