author: Mr. Justice Bailey

text:
    Cornelia Martin v. Wilson H. Stubbings.

      Filed at Ottawa November 15, 1888.

    1. Consideration—indebtedness between partners—forming new partnership. On the settlement of partnership accounts, a balance was found due from one partner to the other. The latter had given notice to terminate the partnership, when a new partnership was formed, in consideration of the debtor partner and his wife giving the other their note for the sum due from him, and his assigning a policy of life insurance in pledge, to secure the note: Held, that the indebtedness and the agreement for a new partnership, or either of them, constituted a sufficient consideration for the note, and the transfer of the policy as collateral security.
    2. Lira insurance—mutual benefit society — how far regarded as a life insurance company, under the statute. While a mutual benefit society is not a life insurance company, in the restricted sense in which that term is used in the statute relating to life insurance companies, nor a certificate of membership in such society a policy of life insurance in the same restricted sense, yet such membership certificate is in the nature of a mutual life insurance policy, and such contracts are therefore subject to the rules of law governing life insurance policies, except so far as those rules are modified by the peculiar organization, objects and policy of such societies.
    3. Same—assignment—to whom allowable. While it is a general rule that no person can procure a valid insurance on the life of another unless he has an insurable interest in such life, yet the rule seems to be, that a person having insured his own life, may, by an assignment of the policy, provide for the payment of the insurance money to a person who has no insurable interest in Ms life. A fortiori, he may make such assignment to one who has such insurable interest, as, to a creditor.
    . 4. A creditor may take a policy of insurance directly on the life of his debtor, and, consequently, a policy taken out by a party on his own life, for Ms own benefit, may be assigned by him in pledge, to secure a debt, and the assignee, on his death, will be entitled to receive the insurance money to the extent of his debt.
    5. Same—appointing a beneficiary—power of revocation. In the case of mutual benefit societies, the beneficiary named in the certificate of membership acquires no vested right to the benefit to accrue upon the death of the member, until such death occurs. The member may, therefore, during his lifetime, exercise the power of appointment, without other limits or restrictions than such as are imposed by the organic law of the society, or rules and regulations adopted in conformity therewith. All the beneficiary has during the life of the member, oxring to the right of revocation in the latter, is a mere expectancy, dependent upon the xrill and act of the holder of the certificate.
    6. A certificate of membership in a mutual benefit society, named as beneficiaries the xridow, children or heirs of the person procuring the certificate, in the or’der named, unless otherwise ordered by him during- his lifetime, or by his xrill, in compliance xvith the application. The constitution of the society, made a part of the certificate, provided that any member, having designated his beneficiary, might change the same at his pleasure, xvithout notice to or consent of the beneficiary already named: Held, that the xrif e of the member had no vested right or interest in the certificate, and that an assignment of the same by the member to a creditor, with his xvritten direction to pay to the ereditoi', was valid and binding, and passed to the latter the right to receive the insurance money to the extent of his debt.
    7. Same—who may be made beneficiaries—the statute construed. The statute relating to mutual benefit societies, by empowering a member to name as his beneficiary his legatee or devisee, without restriction, proceeds upon a policy much broader than those statutes which limit the benefits to the member’s relatives, or those dependent upon him. Under the name of “legatee” or “dexdsee” the member may appoint as his beneficiary any person, whether related to him or not. The mode of selection, whether by xrill or xvritten direction, is a mere matter of form, and does not go to the substance of the right to select beneficiaries.
    8. Same—appointing beneficiaries—as to the mode. A certificate of membership in a mutual benefit society, named as the beneficiaries the member’s widow, children or heirs, unless otherwise ordered by him during his lifetime, or by his will. The statute authorizes the naming of legatees or devisees as beneficiaries, but does not forbid the appointment of the beneficiary otherwise than by will. The holder, by assignment of the certificate, directed payment to his creditor: Held, that his failure to adopt the mode prescribed by the statute,—that is, by making a will naming the creditor as a legatee,—was doubtless a matter of which the society might object, but that the widow, having no vested rights in the certificate, could not raise this objection.
    9. Appeal—as to the amount involved. On a bill by the-assignee of a certificate of membership in the nature of a policy of life insurance, issued by a mutual aid society, to compel such society to levy assessments on its members, and to pay over to complainant the sum due him, for which he held the certificate as a pledge for the payment of money, the "wife of the member, and beneficiary therein, being made a defendant, the court found there was due on the certificate $1025, but of that smn $474 was ordered to be paid to the complainant and the balance to the wife, who alone appealed from the judgment of the Appellate Court affirming the decree. It was held, that this court had no jurisdiction, as the amount involved was only $474, and there was no certificate of importance.
    Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    The present record embraces the proceedings and decrees in two separate suits in chancery heard together in the Superior Court, and also in the Appellate Court, by stipulation of the parties, and brought to this court from the Appellate Court by writs of error. The first was a bill of interpleader, brought by the Knights Templars and Masons’ Life Indemnity Company against Cornelia Martin and Wilson H. Stubbings, praying that the defendants be required to interplead as to their rights to receive a certain sum of money admitted by the complainant to be due from it on a membership certificate issued by it to Neal K. Martin, the deceased husband of Cornelia Martin. The other was a bill in the nature of a bill for specific performance, brought by Wilson H. Stubbings against the Supreme Council of the Eoyal League and Cornelia Martin, praying that said Supreme Council be required to levy a mortuary assessment upon its members surviving at the death of said Neal K. Martin, to raise a fund in accordance with its contract with which to pay the amount payable on a certificate of membership issued by said Supreme Council to said Neal K. Martin, in his lifetime, and to pay over said money, when raised, or a part of it to the complainant. A decree was entered upon the first bill requiring the complainant therein to bring into court the sum of $3505.85 admitted to be due and directing that, after the payment of certain costs, the residue, under certain terms and conditions in the decree specified, be paid over to Stubbings. Subsequently said money was brought into court in pursuance of the terms of the decree, and after the payment of the costs, the residue, amounting to $3281.87, was paid to Stubbings, and the decree so entered was thereupon satisfied and discharged of record. In the second suit, it appearing that the Supreme Council of the Boyal League had, after the filing of the bill, collected from its surviving members to apply upon Martin’s membership certificate the sum of $1023.28, it was. ordered to pay to Stubbings sufficient to satisfy the residue of his claim against said Martin hereinafter more particularly described, and it appearing that there remained the sum of $474.76 of said claim unpaid, that sum was paid to him, and the residue, amounting to $548.52, was paid to Cornelia Martin, thus satisfying and discharging that decree. These decrees were taken by Cornelia Martin by writ of error to the Appellate Court, where both were affirmed. She now brings both of said decrees to this court for review.
    The Knights Templars and Masons’ Life Indemnity Company is a mutual benefit society, organized, as seems to be admitted, under the provisions of the “Act to provide for the organization and management of corporations or societies for the purpose of furnishing life indemnity or pecuniary benefits to widows, orphans, heirs,' relatives and devisees of deceased members, or accident or permanent disability indemnity to members thereof,” in force July 1, 1883. The objects of said society, as declared by its constitution, are, “To furnish life indemnity or pecuniary benefits to the widows, orphans, heirs, relatives, devisees or legatees of deceased members,” according to certain regulations and provisions in said constitution specified. The only provisions of the constitution material here are the following:
    “When an applicant has complied with the constitution and by-laws and been accepted, the board of directors shall make over to him, through the officers of the company, a policy of membership, stating the terms and conditions of the contract between the parties, which policy shall be sufficient evidence of his membership at the time it was issued, and shall constitute the basis of settlement with the beneficiaries; but no person shall be entitled to the benefits of this company until such certificate is issued and delivered.
    “Upon due notice and satisfactory proof of the death of a member of this company, the board of directors shall, within sixty days, pay the widow, children, or heirs of the deceased member (and in the order named, unless otherwise ordered by the member during his lifetime or in his will) the amount set forth in the deceased member’s policy of membership.
    1‘Any member, having designated his beneficiary or beneficiaries, may change the same at his pleasure, without notice to or consent of the beneficiary or beneficiaries, and all accepting any interest in this policy or company, do so upon these express terms.”
    On the 16th day of June, 1884, Neal K. Martin made a written application'for membership in-said company, and in said application, to the question, “To whom do you wish the benefit paid (unless otherwise ordered in your lifetime, or in your will), and relationship, existing between you?” he answered, “My wife, Cornelia Martin.” Upon this application, said company, on the 19th day of June, 1884, issued to said Martin a policy or certificate of membership, the material portions of which are as follows:
    “In consideration of the agreements and stipulations hereinafter expressed, and a membership fee of six dollars, Neal K. Martin, house and sign painter, of Chicago’, Ills., is admitted to membership in the Knights Templars and Masons’ Life Indemnity Company, for the term of life, from the 19th day of June, 1884, at 12 o’clock, noon. And in further consideration that the said Neal K. Martin shall pay all dues and assessments made upon him as such member, in pursuance of the constitution and by-laws of said company,'at the times and in the manner required of him, the said company will pay, at their principal office, within sixty days after notice and satisfactory proof of the death of said member is furnished said company, to the widow, children, or heirs of said member, and in the order named, unless otherwise ordered by the member during his lifetime, or in his will, the sum of $5000.”
    The circumstances upon which Stubbings bases his claim to-the moneys payable under said policy or certificate of membership, as also to a portion of the money payable under Martin’s certificate of membership in the Supreme Council of the Royal League, are as follows:
    On the 16th day of April, 1883, Stubbings and Martin entered into a co-partnership under the firm name of W. H. Stubbings & Co., for the purpose of carrying on the business of painting in all its branches, and the sale of paints, oils, varnish, brushes, etc., in Chicago, such partnership to continue for five years from that date, but it was provided that it might be dissolved at any. time by either party by giving three months’ notice to the other of his desire' to dissolve the same. Stubbings agreed to. furnish the capital required to carry on the business, and Martin was to devote all his time and energy to the business and have the entire control of the same, and! the profits, after paying for the stock furnished, and all the expenses of the business were to be divided equally between them.
    Under this partnership agreement the business of said firm was entered upon and carried on until some time in the early part of the year 1886, when it became known to Stubbings- and was admitted by Martin-that the latter had drawn out of the firm, not "only all of his share of the profits arising from the business, but a large sum of money besides. To ascertain the amount of his overdrafts, Martin himself, during the month of January, 1886, employed one Evans, a competent accountant, who, with the assistance of Martin, examined the firm books and found due from Martin to Stubbings, on the 1st day of January, 1886, the sum of $3411.66. In the months of February and March following, Stubbings and one Annis, an expert book-keeper, examined the books down to the same date with precisely the same result. While this latter examination was going on, Martin, not satisfied with his former examination, employed one Wright, another expert book-keeper, and went over the books again, and again arrived at the same result.
    The extent of the overdraft having been thus ascertained and verified, Stubbings announced his determination to dissolve the partnership and close up their business. The evidence tends to show that Martin, thereupon, proposed that if he would not do so, and would enter into a new arrangement by which the scope of the business would be somewhat enlarged, he would give him a note for the balance as ascertained by the accounting thus had, with his wife as surety, and would deposit as collateral to said note the two certificates of membership above mentioned. This proposition was taken under advisement by Stubbings, and on the 16th day of April, 1886, Stubbings and Martin met at the office of Stubbings’ attorney, Mrs. Martin also being present. A negotiation of several hours ensued, Mrs. Martin, according to Stubbings’ testimony, being present all the time and taking part. She however testifies that she was present but a few minutes, took no part, and heard little that was said. The negotiation resulted in a substantial acceptance by Stubbings of Martin’s proposition.
    New articles of co-partnership were thereupon drawn up and executed by Stubbings and Martin, by which they agreed that the articles of co-partnership entered into April 16,1883, were cancelled and annulled; and that in lieu thereof the parties formed a new co-partnership under the same firm name, for the purpose of carrying on the business of painting, papering in all its branches, and buying and selling painters’ goods and materials of all kinds, including paints, oils, varnish, brushes, ladders, etc. It was agreed that said co-partnership should continue for the term of two years from that date but might be terminated by either party at any time by giving the other three months’ notice in writing; that Stubbings should allow the plant and stock on hand belonging to him which had been used in the business of the former firm, to continue to be used in the business of the new firm, and that when necessary, he would also advance the cash capital required to carry on the business and replenish the stock from time to time as might be necessary, the firm to allow him interest on the money advanced ; that Martin should devote all his time, attention and energy, so far as his health would permit, to said business, and should have the control and management thereof; that Stubbings, who was engaged most of his time in other business, should spend such time in the business of the firm as he conveniently could; that Martin should keep just and true books • of account which should at all times be open to the inspection of Stubbings; that the parties should share equally in the profits, but that no profits.should be divided until all the expenses of the business' should be paid, and Stubbings reimbursed for the value- of the plant and stock contributed by him and all capital which he might advance; that neither party should draw from the business a sum to exceed $150 in any one month during the continuance of the co-partnership, unless by mutual agreement in writing; that at the termination of the co-partnership the parties should make a true, just and final account of all things relating to the business, and that all the money, choses in action and property of the firm, or so much thereof as should be necessary, should go to Stubbings to satisfy whatever might be due him for the plant and stock, and the capital advanced by him, and if such assets should not be sufficient, Martin should pay him his proper -share of the deficiency.
    Upon the execution of said articles of co-partnership, Martin and his wife executed and delivered to Stubbings the following promissory note for the amount of Martin’s indebtedness to Stubbings, as fixed by the accountings above mentioned:

      “$3411.66. Chicago, January 1, 1886.

    “One day after date, for value received, we promise to pay to the order of Wilson H. Stubbings the sum of $3411.66, at the office of Wilson H. Stubbings, with interest at the rate of seven per cent per annum after date. Having deposited with said Wilson H. Stubbings as collateral security a policy of life insurance (No. 21) of $4000, issued by the Alpha Council No. 1, the Supreme Council of the Boyal League, located at Chicago, Illinois; also a policy of life insurance (No. 200) of $5000 issued by the Knights Templars and Mason’s Life Indemnity Company, which we hereby give the said Wilson H. Stubbings, his agent or assignee, authority to collect, or any part thereof, on the maturity of this note, or at any time thereafter, or before, in the event of said securities depreciating in value in the opinion of Wilson H. Stubbings, or his assignee, at public or private sale, at the discretion of said Wilson H. Stubbings or his assignee, without advertising the same or demanding payment or giving him any notice, and to apply so much of the proceeds thereof to the payment of this note as may be necessary to pay the same with all interest due thereon, and also the payment of all expenses attending the sale of the said securities, including attorney’s fees; and in ease the proceeds of the sale of the said securities shall not cover the principal, interest and expenses, we promise to pay the deficiency forthwith, after such sale.
    Neal K. Martin, •
    Cornelia Martin.”
    Accompanying said note was a warrant of attorney authorizing an entry of judgment thereon at any time after the maturity thereof.
    At and for some time prior to the execution of the articles of co-partnership and note, Martin was in poor health, and after the formation of the new partnership he was able to give little or no attention to the business of the firm. His health continued to decline until the 27th day of July, 1886, when he died. After his death Stubbings caused judgment to be entered against Mrs. Martin by virtue of said warrant of attorney for the amount of the note, and a motion by her, based on certain affidavits, to vacate the judgment and for leave to plead having been denied, an appeal was taken to the Appellate Court where said judgment was reversed and the cause remanded with directions to the court below to permit Mrs. Martin to plead. (Ma/rtin v. Stubbings, 20 111. App. 381.) Shortly after the reversal of that judgment the present suits were commenced.
    Mr. Millard E. Powers, and Mr. Egbert S. Iles, for the plaintiff in error:
    It is conceded that $3411.66 was the amount claimed to be an over-draft made by Martin from the firm, up to January 1, 1886, that the note of Martin and wife was executed to meet such over-draft, and that the partnership continued, without interruption, from April 16, 1883, to April 16, 1886; also, that the accounts of the firm'were balanced only to January 1, 1886, and that no accounting was had of the business done by the firm between January 1,1886, and April 16 following, at which time the note was executed, and the certificates of membership deposited as collateral security thereto. Therefore, there was no consideration for the note. Chadsey v. Harrison, 11 Ill. 151; Sewell v. Cooper, 21 La. Ann. 582; Stubbings v. Martin, 20 Bradw. 381; Stookey v. Hughes, 18 Ill. 55.
    The fund created by the membership of Martin could not be assigned to pay debts. Briggs v. Earl, 139 Mass. 473; Duval v. Goodson, 79 Ky. 224; Daniels v. Pratt, 143 Mass. 221; Benevolent Association v. Clendinen, 44 Md. 420; Legion of Honor v. Perry, 140 Mass. 580; Van Bibbers v. VanBibbers, 14 Ins. Law J. 290; Eastman v. Relief Association, id. 858; Aid Association v. Gonser, id. 434; Felix v. A. O. U. W. 13 id. 234.

      Mrs. Martin, as beneficiary, had no assignable interest in the fund created by her husband’s membership. Aid Society v. Lewis, 9 Mo. App. 412; Richmond v. Johnson, 28 Minn. 447; Durian v. Central Verein, 7 Daly, 168; Swift v. Benefit Association, 96 Ill. 309.
    A change of beneficiary must be made in accordance with the by-laws and rules of the association, and an attempt to otherwise change, confers no rights on the new beneficiary. Coleman v. Supreme Lodge, 18 Mo. App. 189; Catholic Benefit Association v. Priest, 46 Mich. 431; Stephenson v. Stephenson, 64 Iowa, 534; Johnson v. Van Epps, 110 Ill. 563; Morley v. Aid Association, 10 Fed. Rep. 329; Benefit Association v. Brown, 33 id. 11.
    Messrs. Hoyne & Follansbee, for the defendant in error:
    Stubbings and Martin having made a settlement of their partnership affairs up to January 1, 1886, and Martin having given his note to Stubbings for the balance found, upon the settlement, to be due from him to Stubbings at that time, Stubbings could sue him on the note, whether the partnership continued after the settlement or not. Sturges v. Swift, 32 Miss. 239; Preston v. Strutton, 1 Aust. 50; Brierly v. Cripps, 7 C. & B. 709; Van Ness v. Forrest, 8 Cranch, 30; Caswell v. Cooper, 18 Ill. 532; Parsons on Partnership, *278; 2 Bindley on Partnership, 1027; Anderson v. Robertson, 32 Miss. 241 ; Sprout v. Crowley, 30 Wis. 187; Ives v. Miller, 19 Barb. 196.
    The execution of the new articles of co-partnership, by which the scope of the business theretofore carried on between Stubbings and Martin was enlarged, and by which Martin was to devote only such time to the same as his health would permit, and by which Stubbings was limited as to the amount of money which he could withdraw from the firm monthly, and by which he waived his right to terminate all business relations existing between them, was a sufficient consideration for the execution of said note by Martin and wife, and a sufficient consideration for the deposit of said collaterals by them. 1 Parsons on Contracts, 431; Doyle v. Knapp, 3 Scam. 334; Burch v. Hubbard, 48 Ill. 164; Buchanan v. International Bank, 78 id. 500; Trust Co. v. Rigdon, 93 id. 458; Joliet Iron Co. v. Brick Co. 82 id. 548; Benton v. Holliday, 44 Ark. 56; Miller v. Hawker, 66 id. 185.
    Parol evidence is admissible to show what the consideration in fact was for the execution of the judgment collateral note and the deposit of the collaterals. Grier v. Puterbaugh, 108 Ill. 602; Kidder v. Vandersloot, 114 id. 133; Huebsch v. Scheel, 81 id. 281; Wolf v. Fletemeyer, 83 id. 418; Primm v. Legg, 67 id. 500; Booth v. Hynes, 54 id. 363.
    The statement of Mrs. Martin that she does not remember having or hearing certain alleged conversations with her husband and Stubbings in regard to the terms and conditions upon which the new articles of co-partnership were entered into, will not be regarded as a contradiction of the affirmative testimony of Stubbings, and others, that such conversation was had. Vanpelt v. Hutchinson, 114 Ill. 435; Railroad Co. v. Coyer, 79 id. 373; Railroad Co. v. Dickson, 88 id. 431.
    It is no longer an open question in this State that life insurance policies or benefit certificates, such as those in controversy, are the subject of pledge or assignment, and that no principle of public policy is contravened in permitting the same to be done. This is also true in other States, where not prohibited by statute or the contract of insurance itself. Nortwood v. Guerdon, 60 Ill. 253; Pomeroy v. Life Ins. Co. 40 id. 398; Highland v. Highland, 109 id. 366; Johnson v. Van Epps, 110 id. 551; Benefit Association v. Blue, 120 id. 121; Norris v. Insurance Co. 131 Mass. 294; Troy v. Sargeant, 132 id. 408; Life Ins. Co. v. Allen, 138 id. 24; Briggs v. Earl, 139 id. 473; Emerick v. Coakley, 35 Md. 138; Life Ins. Co. v. Miller, 13 Bush, 489; Baker v. Young, 47 Mo. 453; Archibald v. Life Ins. Co. 38 Wis. 542.

      Even if the policy could not be pledged to Stubbings, that objection could be raised only by the companies, and not by Mrs. Martin. Johnson v. Van Epps, 110 Ill. 551.
    At the time Martin pledged said benefit certificates with Stubbings, as collateral security for his indebtedness to him, Mrs. Martin had no interest in them. All she had was a mere expectancy, which, had he retained his interest in the policies, would have ripened into a vested right upon his death. As it was, he disposed of a part of his rights thereunder, for a valuable consideration, prior to his death, and if not done in conformity to the rules of the associations, they alone can complain. Swift v. Benefit Association, 96 Ill. 309; Norwood v. Guerdon, 60 id. 253; Aid Society v. Lewis, 9 Mo. App. 412.
   Mr. Justice Bailey

delivered the opinion of the Court:

The amount involved in the case of Stubbings vs. The Supreme Council of the Boyal League and Cornelia Martin is only $474.76. It is true the amount found due from the Supreme Council of the Boyal League on the membership certificate of Heal K. Martin, deceased, was $1023.28, but of that sum $548.52 was ordered to be paid and was in fact paid to Cornelia Martin, and only $474.76 was ordered to be paid to Stubbings. The Supreme Council of the Boyal League is not complaining, the writ of error having been sued out by Cornelia Martin alone. As between her and Stubbings, the only parties to the present controversy, only $474.76, or less than $1000 is involved. There is no certificate by the judges of the Appellate Court that the case involves questions of law of such importance, either on account of principal or collateral interests, that it should be passed upon by this court. It follows that in that case the writ of error was improvidently issued, and it must therefore be dismissed.

In the other case, the one involving the certificate of membership in the Knights Templars and Masons’ Life Indemnity Company, Mrs. Martin bases her right, as against Stubbings, to receive the money payable on said certificate on two grounds, . first, that there, was' no sufficient legal consideration to support either the note executed by her and her husband to Stubbings or the assignment to him of the certificate of membership, and second, that during Martin’s lifetime said certificate was not assignable so as to vest in the assignee the right to receive the money payable thereon at Martin’s death.

In support of the first of these propositions counsel have sought to avail themselves of the principles discussed and adopted by the Appellate Court when the case was before that court on motion to vacate the judgment against Mrs. Martin entered on said note by confession. See Martin v. Stubbings, 20 Ill. App. 381. In that case, it will be observed, the decision was based upon the facts established by certain ex parte affidavits, which, for the purposes of the decision, the court was compelled to take as true. The facts thus shown were, among others, that at the time the note was given the partnership had not been dissolved, but continued after its execution and was dissolved only by the subsequent death of Martin; that,no accounting took place and no balance was struck in Martin’s lifetime; that the consideration of the note was an estimated balance which was not arrived at by any accounting, and wras not regarded or treated by the parties as the true balance, but was subject to correction when an accounting should be had and a balance -ascertained. A state of facts entirely different and calling for an application of entirely different rules of law was presented by the pleadings and proofs at the hearing in the present case. That the partnership was in fact dissolved at the time the note was given is now placed beyond the possibility of question, by the express covenant of the parties in their new articles of co-partnership that such was the ease. It also appears without' contradiction that a most careful and thorough accounting was had in respect to all the business of the firm down to January 1,1886, which showed that Martin, who contributed nothing to the capital of the firm and whose interest was only in the profits, had drawn out his entire share of the profits and the sum of $3411.66 in addition thereto. Had the firm been dissolved January 1, Martin would, according to the accounting, have been indebted to Stubbings in the sum above mentioned. The evidence fails to show whether or to what extent the accounts between the parties were affected by the firm business transacted between January 1 and April 16, the date of the new partnership agreement, but the presumption may be indulged in that very little if any business was transacted during that interval. However that may be, it was clearly competent for the parties, on dissolving their co-partnership, to agree upon the balance due, if they saw fit to do so, without a new accounting. It was competent for them to adopt the balance of January 1 as the true one, and disregard subsequent transactions, and this they are clearly shown to have done. The firm being dissolved and the amount due from Martin to Stubbings being ascertained and agreed upon, such balance constituted an individual indebtedness from Martin to Stubbings which was a sufficient consideration both for the note and for the assignment of the certificates of membership.

But this is not all. The execution of the new articles of co-partnership was" a consideration sufficient to support Mrs. Martin’s execution of the note as surety. It should be observed that the note recites no particular consideration, and it is therefore admissible in order to establish the liability of any of the parties to it, to resort to extrinsic evidence to show a consideration. See Martin v. Stubbings, 27 Ill. App. 121, and authorities there cited. The execution of the note by Martin and wife and the deposit with Stubbings of Martin’s certificates of membership as collateral security, was the inducement to Stubbings to consent to a new co-partnership, instead of terminating his business relations with Martin per-emptorily and at once. There can he no doubt that the note ' and collaterals were given to obtain a renewal of the partnership relation, and such renewal, coupled with the existing and admitted indebtedness from Martin to Stubbings, was a sufficient consideration for Mrs. Martin’s signature and for the deposit of the collaterals. f

The question remains whether the certificate of membership in the Knights Templars and Masons’ Life Indemnity Company was assignable in Martin’s lifetime so as to vest in the assignee the right to receive the money payable thereon at Martin’s death. This question is, we think, substantially settled by the decision of this court in Bloomington Mutual Benefit Association v. Blue, 120 Ill. 121. Counsel, however, have seen proper to re-argue it at considerable length, and we have therefore been disposed to reconsider the question in the light of t.he numerous authorities to which our attention is now directed.

It should be observed that the question comes up here in'a somewhat different form from the one presented in the case last cited. There the controversy was between the mutual benefit society and the person to whom the fund, by the terms of the membership certificate, was made payable. The society denied its liability on the ground that the person to whom the money was appointed to be paid was not one of those enumerated by the statute as proper beneficiaries. Here the society admits its liability, and the only question now is, to which of two parties, the assignee or the widow, the money admitted to be due shall be paid. The court has decreed it to the assignee, and the decree must be" affirmed unless the widow has succeeded in establishing a better title. She being the only one complaining, if she has failed to prove title to the money, it is quite unimportant here what disposition the court has made of it, since no one having a right to do so is calling such disposition in question.

A mutual benefit society is not a life insurance company in the restricted sense in which that term is used in our statute in relation to life insurance -companies, nor is a certificate of membership in such society a policy of life insurance in the same restricted sense of the term, yet it is manifest that such membership certificate is in the nature of a mutual life insurance policy. Commonwealth v. Wetherbee, 105 Mass. 161 ; State v. Benevolent Society, 72 Mo. 146; Supreme Commandery v. Ainsworth, 71 Ala. 436; Sherman v. Commonwealth, 82 Ky. 102; State v. Vigilant Ins. Co. 30 Kan. 585; State v. Northwestern Mutual Life Ins. Co. 16 Neb. 549; State v. Mutual Benefit Association, 18 id. 276; Illinois Masons’ Benevolent Society v. Winthrop, 85 Ill. 537; Illinois Masons’ Benevolent Society v. Baldwin, 86 id. 479; Niblack on Mutual Benefit Societies, 193. Such contracts are therefore subject to the rules of law governing life insurance policies, except so far as those rules must be held to be modified by the peculiar organization, objects and policy of such societies.

While it is a general rule that no person can procure a valid insurance on the life of another unless he has an insurable interest in such life, policies issued where there is no such interest being deemed to be mere wager policies, yet the rule seems to be that a person having insured his own life, may, by an assignment of the policy, provide for the payment of the insurance money to an assignee who has no insurable interest in his life. See authorities cited in Bloomington Mutual Benefit Association v. Blue, supra. A fortiori may he make such assignment to a person having such insurable interest. In this case Stubbings was a creditor of Martin, and so had an insurable interest in his life. Bliss on Life Insurance, secs. 13, 27. He might have taken out a policy of insurance directly on the life of his debtor, and there can therefore be no doubt that had the case been one of an ordinary life policy taken out by Martin on his own life and for his own benefit, the assignment of such policy by him to Stubbings would have been perfectly valid, and would have vested in the latter the right to receive the insurance money at Martin’s death.

If any different rule applies in this case, such rule must find its basis either in the terms of the contract evidenced by the certificate of membership, or in the provisions or policy of the statute under which the certificate of membership was issued. It must be admitted that there is neither in the statute or contract any express prohibition of an assignment by a member of his certificate of membership to his creditor, so as to constitute such creditor a beneficiary of the fund payable at the member’s death. But the position taken by counsel is, that the policy of the statute is to limit the persons who may become beneficiaries to certain enumerated classes, and that such limitation is implied in the provisions both of the statute and contract.

Most of the decisions seem to concur in holding that, in case of mutual benefit societies, the beneficiary named in the eer- . tificate of membership acquires no vested right to the benefit to accrue upon the death of the member, until such death occurs. The member may therefore, during his lifetime, exercise, the power of appointment, without other limits or restrictions than such as are imposed by the organic law of the society or the rules and regulations adopted in conformity therewith. Masonic Mutual Benefit Society v. Burkhart, 110 Ind. 189; Presbyterian Mutual Assurance Fund v. Allen, 106 id. 593; Splawn v. Crew, 60 Texas, 532; Johnson v. Van Epps, 110 Ill. 551; Niblack on Mutual Benefit Societies, sec. 201. All the beneficiary has during the lifetime of the member, owing to the member’s right of revocation, is a. mere expectancy, dependent upon the will and act of the holder- of the certificate. Cases where a different rule has been announced seem to be confined to those where the organic law of the society prohibits a change in the beneficiary first designated.

In the present case, the power of revoking or changing the appointment of the beneficiary was reserved to Martin by the terms of the contract in the broadest possible manner. By his application for membership Mrs. Martin was designated as beneficiary, unless he should otherwise order in his lifetime or by his will, and in substantial compliance with the application, the certificate named as beneficiaries, his widow, children or heirs, in the order named, unless otherwise ordered by him during his lifetime or by his will. The constitution of the society which was incorporated into and made a part of the certificate of membership, provided that any member, having designated his beneficiary or beneficiaries, might change the same at his pleasure, without notice to or consent of the beneficiary or beneficiaries, and that all accepting any interest in the certificate or the society, did so upon those express terms. Under these circumstances it is perfectly clear that Mrs. Martin had no vested interest or property rights in the certificate of membership or the moneys to become payable thereunder, during the lifetime of her husband, and that the certificate, at the time it was assigned to Stubbings, was subject to the absolute control of Martin, and that it was then in his power, either with or without the consent of his wife, to make any disposition of it which did not conflict with the terms of the contract .itself, or the organic law of the society.

Was there either in the statute under which the society was organized, or in the constitution of the society, an implied limitation or restriction upon Martin’s power of appointment of beneficiaries which made it unlawful for him to assign the certificate to his creditor as security for his debt ? The first section of the statute under which the society was organized provides for the organization of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to the widows, orphans, heirs, or relatives by consanguinity or affinity, devisees or legatees, of deceased members, and the constitution of the society, in enumerating the objects for which the society was organized, follows precisely the language of the statute. It can not be contended that Stuhbings ■ could by any possibility, be included within the meaning of the terms, “widow, orphans, heirs, or relatives by consanguinity or affinity,” nor can he be properly classed as a “legatee or devisee,” as he could be made such only by Martin’s will.

It is clear, however, that the statute, by empowering a member'to name as his beneficiary his legatee or devisee, without restriction, proceeds upon a policy much broader than do those statutes which limit the benefits to accrue upon the death of the member to his relatives or those in some way dependent upon him. Under the name of legatee or devisee, the member is given the power.to appoint as his beneficiary any person however related to him or not related to him at all. He may, in the selection of his beneficiary, be governed by considerations of affection or duty, or he may yield to the dictates of mere caprice, subject only to the limitation that the appointment be made by will. The legislature having thus enlarged the category of those capable of being selected as beneficiaries so as to include all persons whom the member may see fit to select as his legatees or devisees, we can perceive no substantial rule of public policy which would be violated by the adoption of a different mode of selection of a beneficiary. No substantial rights of any party are better secured or protected by one mode of appointment than by another. The mode of selection is mere matter of form and does not go to the substance of the right to select beneficiaries.

We are aware that upon the general proposition we are discussing the decisions of the courts are not altogether harmonious, and that some courts of high respectability have reached a different conclusion. Those decisions, however, so far as . i we have been able.to examine them, seem to be based upon statutes essentially different from ours. Thus, Briggs v. Earll, 139 Mass. 473, was a case arising under a membership certificate where the purposes for which the society could be formed were strictly limited by statute to rendering assistance to the widows and orphans of deceased members and the persons dependent upon them. It was there held that an assignment of the membership certificate as security for a debt was invalid. In Dietrich v. Madison Relief Association, 45 Wis. 79, the charter of the association declared that its business should be to afford relief to the widows and children of deceased members, and that to such business it should be limited and restricted, and it was held that an assignment by a member of his membership certificate to the association to secure a debt .which he owed to it was void by reason of the want of authority in the association to take it. Authorities of the class to which the foregoing belong manifestly have no application, here.

The assignment of the certificate of membership to Stubbings is not within the strict letter of the statute but in the absence of all negative words forbidding the appointment of a beneficiary in any other mode than the one prescribed, the assignment to him is not necessarily unlawful and therefore void. He was a person capable under the statute of becoming a beneficiary, and the absolute right of naming him as such was in Martin. His failure to adopt the mode prescribed by the statute, that is by executing a will making Stubbings his legatee, was doubtless a matter of which the society could probably object, but Mrs. Martin had no rights in the certificate which could justify her in interposing an objection. She was to all intents and purposes a stranger to the transaction. Her rights could arise only upon the death of Martin, and then only in case he had wholly failed to make a valid and effectual appointment of another beneficiary in her place.

"It can not"be doubted that Martin at any time before his death, so long as the membership certificate was his property and subject to his absolute dominion and control, might have surrendered it to the company for cancellation. If he had done,so his wife would have had no legal ground of complaint. The power of designating his 'beneficiaries being wholly under Ms control, he had the power of determining who should not as well as who should be such beneficiaries. In making the assignment of the certificate to Stubbings he appointed him to receive the benefit to accrue at Ms death to the extent of the debt due him, and by the same act he revoked the appointment of Mrs. Martin as a beneficiary to the same extent. She being no longer a beneficiary, has no interest which can give her a standing to contest the validity of the assignment to Stubbings, and the society having recognized the validity of said assignment, and professed a willingness to pay the money to him, there was no error of which Mrs. Martin can complain - in the decree of the court ordering such payment to be made.

We find no error in the record, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    The City of Rock Island v. Bridget Cuinely.

      Filed at Ottawa November 15, 1888.

    1. Negligence—injury from defective sidewalk—liability—allegations and proofs. In an action against a city, to recover for a personal injury caused by a defective sidewalk, the declaration alleged that the defendant -“wrongfully and negligently suffered the same to be and remain bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid, to be and remain broken, loose and unfastened to the stringers thereof; by means whereof,” etc. The evidence showed that the sidewalk was in a bad and unsafe condition, . that the planks were loose and unfastened to the stringers, and that the injury was caused thereby, but not that any of the planks were broken: Held, that the failure to prove that the planks were broken did not constitute a variance. It was sufficient to prove that the boards were loose and unfastened, and therefore unsafe and dangerous.
    2. The allegation in the declaration must be broad enough to let in proof of the cause of the injury, and no evidence will sustain a verdict-that does not find support in such allegation; but in an action for tort, it does not follow that every allegation of matters of substance must be proved.
    3. There is a material distinction between the statement of torts and of contracts, the first being divisible in their nature, and proof of part of a tort or injury being, in general, sufficient to support the declaration. It will be sufficient to prove enough of the declaration to constitute a cause of action.
    4. "Where the gist of the action is the negligence of a city in permitting a sidewalk to be and remain in bad and unsafe repair and condition, the declaration will be sustained by proof that the sidewalk was, in fact, in such condition, either by reason of a plank being broken, or because it was loose and unfastened to the stringers. In either event the duty of the city to repair attaches, and if a person, after a reasonable time to make the repairs, while exercising due care, is injured in consequence of the unsafe condition of the walk from either of such causes, the city will be liable to the injured party.
    5. An allegation that the plaintiff’s “right wrist was dislocated and broken,” will be sustained by proof that the radius, or large bone of the forearm, was broken just above the wrist-joint.
    6. Judicial notice—incorporation of cities, etc.—former decision. Under section 6, article 1, of the City and Village act, the courts of this State are required to take judicial notice of the fact of the incorporation of all cities and villages organized thereunder, whether originally so organized, or by a change from acting under a special charter. In this respect there is no difference whether the city is seeking to enforce some municipal right, or it is sought to be held liable for a failure to perform a corporate duty. In this respect, the.case of Brush v. Lemma, 77 HI. 496, is overruled.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Bock Island county; the Hon. Abthub A. Smith, Judge, presiding.
    Mr. J. T. Kenwobthy, for the appellant:
    The declaration charges that “the right wrist of the plaintiff was then and there dislocated and broken.” The proof shows that the injury sustained was “the fracture of the large bone of the forearm.” The plaintiff’s right wrist was neither dislocated nor broken.
    Again: The declaration alleges the planks “were broken, ” etc. There is no proof in the record that any of the planks were broken. On the contrary, all the proof is, the planks were not broken.
    The averment and proof must correspond. 1 Chitty’s Pl. (7th Am. ed.) p. 427; Hilliard’s Rem, for Torts, p. 159, sees. ■ 9, 10, et seq.; Moss v. Johnson, 22 Ill. 633; Railroad, Co. v. McKee, 43 id. 120; City of Bloomington v. Goodrich, 88 id. 558; City of Elgin v. Riordan, 21 Bradw. 600; Gavin v. City of Chicago, 97 id. 66; Railroad Co. v. Rhodes, 76 id. 285; Railway Co. v. Scheuring, 4 Bradw. 533.
    The courts can not take judicial notice of the change of incorporation of the city from its special charter, without some proof that it has been acting under the general Incorporation act. Brush v. Lemma, 77 Ill. 496; Hard v. Decorah, 43 Iowa, 313.
    Mr. William McEniry, and Mr. William Jackson, for the appellee:
    A tort charged need not be proved precisely as laid. It is sufficient if the substance of the issue be proved. 1 Chitty’s Pl. (14th Am. ed.) 305.
    There is no variance as to the injury. Gray’s Anatomy, 315.
    It is for the jury to determine, from the whole evidence,— from the.nature of the. defect,'its situation,'the degree of its exposure to ordinary observation,—what length of time would be sufficient to charge a municipal corporation with notice of a defect in a -street or sidewalk. City of Chicago v. McCulloch, 10 Bradw. 464; City of Chicago v. Dignan, 14 id. 128.
    The general law referred to, (art. 1, sec. 6,) requires all courts to take judicial notice of the existence of cities organized under this law. This court has fully recognized and applied this rule. Harmon v. City of Chicago, 110 Ill. 400 ; Potwin v. Johnson, 108 id. 74.
    Again, the defendant, by its demurrer and plea in this cause, admits its municipal character. . Where a defendant is' sued as a corporation, and appears by that name, it is an admission that the name or designation is correct. Express Co. v. Bradley, 34 Ill. 459.
   Mr. Justice Shops

delivered the opinion of the Court:

Appellee recovered, in the Rock Island circuit court, against appellant, the city of Rock Island, a judgment for $1100, for personal injuries, occasioned, as it is alleged, by falling upon a defective sidewalk, which it was the duty of the city to keep in repair. That judgment was affirmed in the Appellate Court, and this further appeal is' prosecuted by the city.

It is objected, there is a material variance between the allegations of the declaration and proof, both as to the cause and character of the injury. The declaration, after averring the duty of the city to keep the particular sidewalk in repair, etc., alleges that the defendant, not regarding its duty, etc., “wrongfully and negligently suffered the same, to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid, to be and remain broken, loose and unfastened to the stringers thereof, by means whereof,” etc. The evidence shows that the sidewalk was in bad and unsafe condition, that the planks were loose and unfastened to the stringers, and that the injury to appellee was occasioned thereby, but it does not show that any of the planks were broken. This was immaterial. The rule is, that the allegation of the declaration must be broad enough to let in the proof, and that no evidence will sustain a verdict that does not find support in such allegation. But in actions for torts it by no means follows that every allegation of matters of substance must be proved. Ip general, it will be sufficient if enough of the facts alleged in the declaration are proved to constitute a cause of action: “There is,”.says Chitty, “a material distinction between the statement of torts and of contracts, the former being divisible in their nature, and the proof of part of a tort or injury being, in general, sufficient to support the declaration.” (Chitty’s PI. 305.) “In torts, the plaintiff may prove a part of his charge, if the averment is divisible, and there be enough proved to support his case.” , (Id. 386, 387; Cheetham v. Tillotson, 5 Johns. 430; Hilliard on Bemedy for Torts, Í62-360.) The gist of this action was the negligence of the city in permitting the sidewalk to be and remain in bad and unsafe repair and condition, and the declaration was, in that respect, sustained by proof that it was in fact in such con- ■ dition, either by reason of a plank being broken, or because the planks were loose and unfastened to the stringers. In either event the duty of the city to repair attached, and if, after a reasonable time to make the repairs, the plaintiff, while exercising due care for her own safety, was injured in consequence of the bad and unsafe condition of the "sidewalk from either of said causes, her right of recovery under her declaration was complete.

In City of Bloomington v. Goodrich, 88 Ill. 558, relied upon by counsel for appellant, the allegation was, that the sidewalk was out of repair, “by reason of some of the planks being broken, so that” holes were in the sidewalk, and it was uneven and rough. The only defect alleged was by reason of the planks being broken. It was held, and properly, that the allegata et probata must agree, and that the declaration was not sustained by proof that two planks had been removed from the sidewalk. There was there no averment in the declaration under which evidence of the removal of the planks was admissible. Here the evidence sustains the allegation of the declaration, and constitutes a cause of action, even if the allegation that the planks in the sidewalk were broken had been wholly omitted. There is no error in the respect indicated.

In regard to the character of the injury, the allegation is that the plaintiff’s “right wrist was dislocated and broken.” The evidence is, that the radius, or larger bone of the right forearm, was broken just above the wrist-joint. The fracture was oblique,—on one side it was within an inch, and on the other within a half inch, of the lower end of the radius. That the lower end of the radius forms part of the wrist-joint, and is an essential part of the wrist, is the common understanding of the laity, as well as of the medical profession. (Gray’s An. 315.) The language employed by the pleader, unless it has some recognized technical legal meaning, must be construed according to its ordinary and popular sense, and the allegation of injury so understood is amply sufficient to apprise the defendant of the injury sustained.

The question whether the city was chargeable with notice of the condition of the sidewalk, was a question of fact, properly submitted to the jury by the trial court, and their finding, having been affirmed by the Appellate Court, can not be reviewed here.

It is next urged, that there is no allegation of the incorporation of appellant under the general Incorporation law, in force July 1, 1872, or evidence that it is a municipal corporation, or chargeable with the duty of keeping the sidewalk in question in repair. The declaration charges that it was the duty of the city to keep and maintain this sidewalk in suitable and safe condition and repair, and the failure of that duty. The evidence shows that the sidewalk was within the limits of the city of Bock Island, defendant; that one of its officers was required to pass over this walk, with others, and generally to report to the proper city official all defective sidewalks. It abundantly appears thatthe defendant, by its officers, assumed control of this walk, with the other sidewalks of the city. One of the city officials in charge of reporting defective sidewalks, examined this walk in July or August prior to the injury of appellee, and did not report it, because, as he says, he did not observe it was out of repair. Two aldermen of the city testified on the trial,—one, that the sidewalk was out of repair and in unsafe condition at the time of the injury to appellee, and .the other, that it was not out of repair. The liability of the city to maintain the sidewalk in question was not in any manner raised or controverted in the trial court. The cause was there tried upon, the issue of fact as to whether the walk was out of repair and unsafe, as alleged,' and the injury of appellee resulted- therefrom, without negligence on her part. It seems to us clearly established that the sidewalk was within the limits of the city, and .under its control.

In respect of the contention that there is no allegation or proof of the organization of the city under the general Incorporation law, it must be said that no averment or proof of such-incorporation was necessary. Section 6, of article 1, of the City and Village act, provides, that “all courts'in this State shall take judicial notice of the existence of all villages and cities organized under this act, and of any change of organization of any town or city from its original organization to its organization under this act, and from the time of such organization the provisions of this act shall be applicable to such cities and villages.”. This provision would seem to be clear, unambiguous, and mandatory upon the courts of this State to take judicial notice of the existence of the city of Bock Island, and of its change of organization from its special charter to organization under the general law. We are required to take judicial notice of the municipality, under the general Incorporation law, whether originally organized thereunder, or-a change has been effected from its incorporation by special charter to organization under this general act for the incorporation of cities and villages. And it can .make no difference whether the city is seeking to enforce- some municipal right in the exercise of its franchise, or it is sought to charge the failure to perform its corporate duty. No evidence is required to show facts of which the court must by law take notice. It is no objection that the memory of the judge may be at fault, or the court require instruction or information upon the point. Courts may, in all such cases, of their own motion, make such examination or inquiry as they deem necessary to verify the fact. 1 Greenlea-f on Evidence, 4-6.

The case of Brush v. Lemma, 77 Ill. 496, is relied upon by-counsel as holding a contrary doctrine. The later cases, however, of Potwin v. Johnson, 108 Ill. 74, and Harmon v. Chicago, 110 id. 411, hold that courts of the State must take judicial notice of the fact that a city or village is incorporated under the general Incorporation law. It would seem that the case ■ of Brush v. Lemma,- supra, is in conflict with the statute and these later eases, and should therefore be regarded as overruled.

The giving of appellee’s second, third and sixth instructions, and the refusal of the ninth, tenth and eleventh instructions asked by appellant, are urged as error. No discussion of appellee’s instructions would be profitable. We have examined them carefully, in connection with others given, and find no substantial error. They were warranted by the facts proved, and the law is stated with substantial accuracy.

The ninth instruction asked by appellant was properly refused, for the reason that there was no evidence tending to show negligence on the part of the plaintiff in caring for or treatment of her wrist after the injury, or any additional injury or damage flowing from a failure upon her part to exercise due care for her recovery. The instructions must be based upon the evidence.

Every principle announced in the tenth and eleventh refused instructions, important to be stated to the jury, in view of the evidence, was fully stated in the first and fifth of appellant’s series. The giving of the tenth and eleventh instructions would have been simply a repetition, in slightly varied phraseology, of the .principles already fully presented to the jury. It follows that their refusal was not error.

Finding no error in this record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justíce Bakes took no part in the consideration of this case in this court, he having participated in the decision made in the Appellate Court.


author: Mr. Justice Magruder

text:
    Rollin P. Blanchard v. The Lake Shore and Michigan Southern Railway Company.

      filed at Ottawa November 15, 1888.

      1. ¡Negligence—want of due care on the part of the plaintiff—in what it may consist—burden of proof. In an action to recover for a personal injury on the ground of negligence in the defendant, the burden of proof is upon the plaintiff, to establish, either that he himself was in the exercise of due care, or that the injury was in no degree attributable to any want oí ordinary care on Ms part. If he shows that he brought the injury on himself by his own carelessness, he can not recover.
    2. In an action against a railway company, to recover for the death of plaintiff’s intestate through alleged negligence, the plaintiff showed that at the time of the accident, when the deceased was struck by the locomotive engine, he was a trespasser upon the right of way of the defendant, which fact is of itself evidence of a want of ordinary care, and there was no evidence that the injury was willfully or wantonly inflicted: Held, that the court properly instructed the jury to find for the defendant.
    3. So where a person is killed by an engine or train while wrongfully on a railroad track,— as, when he is walking thereon for mere convenience or pleasure, not at a public crossing,—he will be guilty of such gross negligence as to preclude a recovery by his personal representative against the company operating the engine or train, unless his death is caused willfully or wantonly, or the company is chargeable with such gross negligence as is evidence of willfulness.
    4. Same—over-speed of railway train—as an excuse for the want of ordinary care. In an action against a railway company for causing the death of the plaintiff’s intestate by a train of cars while he was on the track, the fact that the train was running at a greater speed than allowed by ordinance, may be considered by the jury in determining whether defendant was guilty of such negligence as caused the death, if the deceased was lawfully on the track at the time, or otherwise was in the exercise of ordinary care.
    5. The fact that a railway company was running its train within a city at a speed prohibited by ordinance, will not relieve a party injured from the exercise of ordinary care for his personal safety, and the speed of the train will not, of itself, furnish a sufficient reason for holding that the injury was willful or wanton.

      6. Same—allegations and proofs—as to ordinance <requiring signal. In an action against a railway company for killing a person on the railroad track not at a street crossing, the plaintiff, to prove negligence, offered in evidence a section of an ordinance, “that the bell of each locomotive engine be rung continually while running within said city.” There was no allegation in the declaration that there was such a requirement of the city code, and its violation: Held, that the evidence was properly excluded for want of such allegation.
    7. Same—what is a street crossing—within the law requiring hell to he rung. The statute requiring a bell of thirty pounds weight to be rung eighty rods from a street crossing, has no application to a street where no travel passes over the track, except upon a viaduct above and ' over the tracks.
    8. Limitations—as to additional count on same cause of action. In an action by a personal representative against a railway company, for causing the death of the intestate, the plaintiff, more than two years after the injury, by leave of court, amended his declaration by adding a new count, which, however, was a mere re-statement of the cause of action set up in the original counts. The defendant pleaded the two years Statute of Limitations to the new count, which the court held good, on demurrer: Held, that the court erred in so holding.
    9. Ebrob will not always reverse—overruling demurrer to plea. "Where the court erroneously sustained a plea to an additional count in a declaration, but the plaintiff introduced evidence, on the trial, under the other counts that he could have given under the additional -count, it was held, that the error in overruling the demurrer was a harmless one.
    10. Appeal—reviewing the facts. "Where the trial court instructs the jury to find for the defendant, or sustains a demurrer to the evidence, this amounts to holding that the evidence is insufficient, in law, to sustain the action, admitting all it tends to prove to be true, and when such action is assigned for error this court will review the evidence, in order to determine whether such ruling was correct.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Mr. Thomas Dent, and Mr. William P. Black, for the appellant :
    The question is, does the evidence now to he considered show that the deceased was on the track without right, and as a mere trespasser. Upon this question we have proof of its having been customary for the railroad employes, for years, to use this track in going from the railroad freight offices to get their dinner. Certainly, proof of such usage was proper. Townley v. Railroad Co. 53 Wis. 626; Railroad Co. v. Hammer, 72 Ill. 349.
    The plaintiff was entitled to have the ease put to the jury, under proper instructions, as to whether his intestate exercised ordinary care under all the circumstances, and was also-entitled to have the question of comparative negligence submitted to the jury. Railroad Co. v. Hedges, 105 Ind. 398; Byrne v. Railroad Co. 104 N. Y. 362; Cassida v. Navigation Co. 14 Ore. 551.
    The additional count was but a re-statement of the cause of action for which the suit was brought, and was not obnoxious to the objection of introducing a new cause of action. In fact, the statute on which the action is based gave but one right of action, and the additional count referred to this, and no other, cause of action; and for this reason the additional count could properly be filed, without being subject to the bar of the statute. Dickson v. Railroad Co. 81 Ill. 217.
    It was for the jury to determine whether there was a want of ordinary care on the part of the plaintiff, under the evidence, as presented. “Negligence is not a legal question, but is one of fact.” Railroad Co. v. Haworth, 39 Ill. 353; Holmes v. Railroad Co. 94 id. 444.

    The defendant, by asking the court to instruct the jury to find for the defendant, admitted the truth of plaintiff’s evidence, and all presumptions or conclusions of fact which a jury might fairly draw from the same. Phillips v. Dickerson, 85 Ill. 11.
    Mr. Pliny B. Smith, for the appellee:
    The ruling of the court on the demurrer to the plea of the Statute of Limitations, even if erroneous, worked no harm, as the evidence proposed was admitted under the other counts.

      That the deceased was a trespasser on appellee’s track, see Railroad Co. v. Godfrey, 71 Ill. 500; Railroad Co. v. Hetherington, 83 id. 510; Railroad Co. v. Mulherin, 81 Pa. St. 367; Railroad Co. v. Schwingling, 101 id. 288; Morrissey v. Railroad Co. 126 Mass. 327; Wright v. Railroad Co. 129 id. 440; Cauley v. Railroad Co. 95 Pa. St. 398.
    Walking wrongfully upon appellee’s track is gross negligence, and such as to bar a right of recovery, unless the injury was wanton or willful. Centralia v. Krouse, 64 Ill. 19; Railroad Co. v. Hall, 72 id. 222; Railroad Co. v. Hammer, id. 349.
   Mr. Justice Magruder

delivered the opinion of the Court:.

This is an action on the ease, brought, under the act of February 12,1853, “requiring compensation for causing death by wrongful act, neglect or default,” to recover damages for the death of John W. Biordan, alleged to have been caused by the carelessness and improper conduct of the Appellee Company. . The suit was begun in the Superior Court of Cook County in August, 1883, and, after the first trial which resulted in a verdict for the plaintiff, was appealed to the Appellate Court by the Bailroad Company and reversed and remanded. After it was so reversed and remanded, the plaintiff filed an additional .count on April 20, 1887, alleging that the defendant ran the engine, which caused the death of the deceased, at a greater rate of speed than was permissible under the ordinance of the city of Chicago forbidding passenger trains to run faster than ten. miles an hour and freight trains to run faster than six miles an hour within the city limits, and that, when the accident occurred, the defendant .was running its engine at the rate of fourteen miles an hour and had no watch or look-out upon the engine so as to provide for the safety of persons who might be upon the track, etc.

The declaration, as originally filed, contained four counts; the first and second charged generally the careless and im-proper management of the engine; the third alleged the failure to ring a bell or blow a whistle, as required by the statute, when within eighty rods of a street crossing; the fourth charged that the engine was running at the rate of fourteen miles an hour in violation of the ordinance aforesaid. This fourth count is substantially the same as the additional count filed after reversal, except that the latter alleges a failure to keep and maintain a watch or lookout upon the .engine, and charges the. defendant with a “wanton and reckless disregard of its duty, ” and with “negligent, unlawful and wanton mis-conduct. ”

The defendant below pleaded the general issue to all the counts, and also a plea of the statute of limitations of two years to the additional count. The trial court overruled plaintiff’s demurrer to the latter plea and held the plea to be good, to which ruling plaintiff excepted. Judgment was entered for the defendant upon the plea of the statute of limitations, to which also plaintiff excepted.

Upon the second trial before a jury, after the plaintiff .had introduced his evidence, the defendant orally demurred thereto and moved for an instruction to the jury to find for the defendant. The Court thereupon instructed the jury in writing as follows: “The jury are instructed that, under the evidence in this case, their verdict must be for the defendant.” The plaintiff excepted to this instruction and to the withdrawal of the case from the jury. Verdict was rendered for defendant, judgment entered upon the verdict, and exception taken by the plaintiff. The judgment of the trial court has been affirmed by the Appellate Court, and the case is. brought before us by appeal from the latter court.

Where the jury are instructed to find for the defendant, or, what is the same thing, where a' demurrer to the evidence is sustained, such action of the court is the same as holding that the evidence is insufficient in law to sustain the action, even if all that it tends to prove is admitted to be true. (Doane v. Lockwood, 115 Ill. 492.) In order, therefore, to determine whether the court in this case properly instructed the jury to find the issues for the defendant, it becomes necessary to look into the evidence.

The deceased was killed on December 15, 1882. He was sixteen or seventeen years old, and, on the day of his death and for about three months prior thereto, was at work in the freight house of the Chicago and North-Western Railway Company. This freight house was located in the west division of the city of Chicago between Meagher street on the north and Sixteenth street on the south, and between Jefferson street on the east and Union street on the west. Its eastern end fronted on Jefferson street and it extended westward for about 400 feet towards Union street, its western end being about 125 or 150 feet east of Union street. South of it and extending from Jefferson street to Union street was the freight house of the Chicago Burlington and Quincy Railroad Company. The next street west of Union was Halstead street. Between Union and Halstead streets was the round house of the C. B. and Q. R. R. Co., standing to one side and out of the way of the R. R. tracks. Newberry Avenue is the street next west of Halstead street and Johnson street is the next street still further to the west. South of 16th street and parallel with it is 17th street, which runs, east and west. • The deceased lived on 17th street between Newberry Avenue and Johnson street and nearer to the latter than the former.

The two blocks between Jefferson and Halstead streets, on the east and west, and Meagher and 16th streets, on the north and south, are covered with railroad tracks, there being some twenty five or thirty of such tracks. They run from east to west. They cross Jefferson and Union streets. Some of them run between the freight houses of the two roads. The northern tracks towards Meagher street are owned by the C. & N. W. R. R. Co. and the southern tracks towards 16fch street by the C. B. & Q. R. R. Co. One or two tracks run into the western end of the N. W. freight house, and one or more tracks north of it, and one or more south and along side of it.

At Halstead street there is a bridge or viaduct, which is a • part of the street. The B. B. tracks and the engines and cars on them run under this bridge, and the public travel passes on it above the tracks and trains.

At twelve o’clock on December 15, the deceased came out of the western end of the N. W. freight house to go home to his dinner. He went westward across Union street upon the N. W. tracks to a point between Union and Halstead streets, then turned south to the C. B. & Q. tracks and was walking along the northern track of the C. B. & Q. road or diagonally across it, when he was struck and killed by an engine of the appellee, backing “tender first” on the C. B. & Q. track towards the west. The accident occurred at a point about two feet east of the viaduct.

The deceased was not struck at a street crossing, but while upon the B. B. track between Union street and the Halstead street viaduct. At Halstead street foot passengers did not cross the tracks as at Union and Jefferson streets, but passed above them upon the bridge. The proof shows that, in this net work of tracks, cars and engines are constantly passing and re-passing. The tracks do not run along either Meagher or 16th street, but upon the space between them. The deceased might have done as his father did, who came out of the freight house with him. He might have turned southward upon Union street and then westward on 16th street, and, in this way, would have avoided walking along the tracks. His intention was, either to walk along upon the track westward to Newberry Avenue and then turn southward to "17th street where he lived, or to cross the tracks near the east side of the Halstead street viaduct moving southward so as to strike 16th street. In either case he was not where he had a right to be.

It is clear, that, under the doctrine laid down by this Court in I. C. R. R. Co. v. Godfrey, 71 Ill. 500, and I. C. R. R. Co. v. Hetherington, 83 Ill. 510, the deceased was a trepasser upon the right of way of the Bailroad Company. He was walking along the railroad track, or trying to cross the tracks in a diagonal direction, at a point where there was no regular street ■crossing and where foot passengers could not lawfully go. He was not so traveling upon any business connected with the l’ailroad. It is true that he was employed in the freight house ■of the C. & N. W. B. B. Co. as an 'assistant “freight caller,” but, when he was killed, he was walking on the tracks of the 'C. B. and Q. B. B. Co. using them for his own convenience in going to his home to get his dinner.

The plaintiff introduced some testimony tending to show, that, for a number of years the workmen in the freight houses, who lived west of the Halstead street viaduct, had been in the habit of walking upon the tracks under the .viaduct at the noon hour in order to reach their homes for dinner by a shorter Toute, and that this custom had- never been prohibited or interfered with by the railroad companies. It is therefore claimed that the deceased was on the tracks by the implied permission ■of the railroads and can not be regarded as a trespasser. But this precise question was decided adversely to the claim thus made in the Godfrey case. It was there said: “The plaintiff was traveling upon defendant’s right of way * * * for his ■own mere convenience * * s . There was nothing to exempt him from the character of a wrong-doer and trespasser in so ■doing, further than the supposed implied assent of the company, arising from their non-interference with a previous like practice by individuals. But, because the company did not see fit to enforce its rights and keep people off its premises, no right of way over its ground was thereby acquired.” The Godfrey case was referred' to and indorsed in the Hetherington ■case, where it was said: “The deceased, when injured, was walking * * * upon the right of way of the railroad company for pleasure. * * * She occupied the position of a trespasser. The fact that persons residing in the locality where the accident occurred had been in the habit of traveling upon the right of way of the defendant, and no measures had been taken to prevent it, did not change the relative rights or obligations of the deceased or the railroad company.”

Under the authorities cited, we think that the deceased was guilty of gross negligence in walking upon the track at the place above described. This being so, no recovery can be had in this action, unless the death of the deceased was “wilfully or wantonly” caused by the defendant, or unless the defendant is chargeable with such “gross negligence as evidences wilfulness.” In the Godfrey case it was held as follows: “Notwithstanding the plaintiff was unlawfully upon defendant’s right of way * * * yet the defendant might not, with impunity, wantonly or wilfully injure him. And if defendant’s servants, who were in the management of the engine, after becoming aware of plaintiff’s danger, failed to use ordinary care to avoid injuring him, defendant might be liable.” In the Hetherington case it was also said: “Where a person, voluntarily and without authority, undertakes to travel upon a railroad track, he-ought not to recover damages for an injury received, unless it was wanton and wilful.”

The plaintiff in this case has not shown that the conduct of the defendant or its servants was wanton or wilful. The proof tends to show, that the engine was moving at a rate of speed greater than that permitted by the city ordinance. This circumstance might well have been considered by the jury in determining whether the defendant was guilty of such negligence as caused the death of the deceased, if the latter had been lawfully upon the track, or had otherwise been in the exercise of ordinary care. But in the Hetherington case the following language was used: “While it is true the railroad company was running its train at a greater rate of speed than allowed by the ordinance of the city of Chicago, yet that fact did not relieve the deceased from the exercise of ordinary care, nor can the speed of the train alone be regarded as furnishing a sufficient reason for holding that the injury was wilful or wanton.”

The plaintiff offered to introduce in evidence section 1836 of the Municipal Code of Chicago, which reads as follows: “That the bell of each locomotive engine be rung continually while running within said city.” This was properly excluded by the trial court, because there was no allegation in the declaration that there, was such a requirement of the City Code and, therefore, defendant had not been charged with a breach of it. (I. C. R. R. Co. v. Godfrey, supra.). The only allegation upon this subject in the declaration is, that no bell of 30 lbs.’ weight was rung at the distance of 80 rods from the crossing. This has reference to a requirement of the statute. The evidence does not show a violation of this statutory provision. If it were true that such a bell was not rung at a distance of 80 rods from Halstead street, it can not be said that Halstead street was a crossing, because, as already stated, no travel passed over the tracks at that street, except upon the viaduct far above and out of the way of the tracks.

The proof does not show that defendant’s servants, who were in the management of the engine, failed to use ordinary care to avoid striking him.

We do not think that the trial court erred in instructing the jury to find for the defendant. The defendant introduced no evidence. There was no conflict in the testimony. “Admitting all the testimony tends to prove” we have no hesitation in saying that plaintiff did not establish a right to recover. (C. R. I. & P. Ry. Co. v. Lewis, 109 Ill. 120.) It was incumbent on him to prove that the deceased was in the exercise of ordinary care. He showed that, at the time of his death, the deceased was a trespasser upon the right of way of the railroad company. This court has decided that such fact is itself evidence of a want of ordinary care. “The burden is always upon the plaintiff to establish either that he himself was in the exercise of due care, or that the injury is in no degree attributable to any want of proper care on his part.” (Wharton’s Law of Negligence, (2d ed.) sec. 424). “If, therefore, the plaintiff, in his own case, shows that he brought the injury on himself by his own carelessness, he may be non-suited.” Id. sec. 427.

As the violation of the city ordinance by running at too great a rate of speed is the fact relied on to show that defendant wantonly and wilfully caused the death of Biordan, and as this Court has decidéd that such fact is not evidence of wilfulness, it follows, that, if the case had been submitted to the jury and a verdict for the plaintiff had been returned, it would have been the duty of the trial court to set the verdict aside. This being so, it was proper for the court to instruct the jury in the first place to find for the defendant. (Wharton’s Law of Negligence, sec. 420.)

The trial court erred in overruling the demurrer to the plea of the statute of limitations. The additional count did not introduce a new cause of action, but was a mere re-statement, by way of amendment, of the cause of action set up in the original counts of the declaration. The plea of the statute of limitations to the additional count was not, therefore, a good plea. But this error worked no harm to the appellant, as all the evidence proper to be introduced under the additional count was permitted to be introduced under the other counts.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this cause in the Appellate Court, took no part in this decision.