(259 Ill. 102)

blanks furnished by the head clerk. The LOVE v. MODERN WOODMEN OF AMER- certificate also provided that it should be ICA.

null and void if Love should within one year (Supreme Court of Illinois. June 18, 1913.) commit suicide, or his death should result, 1. INSURANCE (SS. 715, 718*)-MUTUAL BENE-directly or indirectly, from his intemperate

FIT ASSOCIATIONS – BENEFIT CERTIFICATE use of intoxicating liquors. The appellant's CONTRACT—"CONTRACT OF INSURANCE.”

The constitution and by-laws of a mutual affidavit of merits set up that the appellee benefit association, together with the applica- had not made proofs of death, nor filed the tion of insured for membership and the bene- same with the head clerk, and therefore the fit certificate, constitute the “contract of in- suit was brought before any right of action surance,

had accrued to her, and that Love commit[Ed. Note.-For other cases, see Insurance, Cent. Dig. & 1853, 1854; Dec. Dig. $$ 715, ted suicide, and his death resulted indirectly 718.*

from the intemperate use of intoxicating For other definitions, see Words and Phrases, liquor. There was a trial and a verdict vol. 4, pp. 3674-3677.]

for the appellee for $1,000. Judgment was 2. INSURANCE ($_789*)-MUTUAL BENEFIT As- entered on the verdict, and the Appellate

SOCIATIONS REQUIREMENTS PROOF OF Court for the First District affirmed the DEATH.

A provision of a mutual benefit certificate, judgment and granted a certificate of imrequiring beneficiary to furnish proofs of death portance. before any action would lie on the certificate, Proofs of death, as required by the conwas valid and binding. [Ed. Note. For other cases, see Insurance, sent to the head clerk, or passed upon by

tract of insurance, were not furnished or Cent. Dig. $$ 1963–1965; Dec. Dig. $ 789.*] 3. INSURANCE (8 789*)-MUTUAL BENEFIT As- the board of directors of the defendant.

SOCIATIONS - LOCAL LODGE — SECRETARY Notwithstanding the failure to comply with AUTHORITY-PROOFS OP Loss—WAIVER. the contract, the plaintiff claimed a right

Where the secretary of a local camp of a to maintain her action, on the ground that mutual benefit society was authorized to collect and remit assessments and in case of death the defendant had denied liability and thereto deliver blanks for proofs of death, and when fore waived the proofs. William P. Dowd executed to transmit them to the secretary of was clerk of the local camp of which Love the head clerk of the head camp, such local secretary had no authority to waive a bene- was a member, and two or three days after ficiary's duty to submit proofs of death by in the death of Love he went to the residence forming her that it was useless to make them, of the widow, filled out a preliminary notice as the head camp would not pay the loss. of the death, and told her to come to his

[Ed. Note. For other cases, see Insurance, office in the Ashland block, and he would Cent. Dig. SS 1963–1965; Dec. Dig. $ 789.*]

have John Harris help her fill out the death Appeal from Appellate Court, First Dis-proofs without any cost to her. Four or trict, on Error to Municipal Court of Chica- five days afterward the plaintiff went to go; Max Eberhardt, Judge.

Dowd's office, and he furnished her with Action by Nellie Love against the Modern blanks for the proofs and took her into the Woodmen of America. Judgment for plain-adjoining room of John Harris, an attorney tiff, and defendant appeals on a certificate and notary public, who solicited new memof importance. Reversed.

bers for the defendant. Dowd introduced Truman Plantz and George G. Perrin, her to Harris and requested him to assist both of Rock Island, and A. W. Fulton, of her. Harris said he would help her fill out Chicago, for appellant. Kretzinger, Rooney the papers and act as notary public, and it & Kretzinger, of Chicago, for appellee.

would not cost her anything. She testified

that Dowd told her, when she came to his CARTWRIGHT, J. The appellant, the office, that he was sorry for her trouble, but Modern Woodmen of America, issued its he knew there would not be any use, and she benefit certificate, dated November 29, 1909, would not get the insurance, because her signed by C. W. Hawes, head clerk, to Na- husband committed suicide; or, as she statthan D. Love, a member of the local camp ed on cross-examination, he told her that if in Chicago, for $1,000, payable on his death her husband has committed suicide she could to his wife, the appellee, Nellie Love. Less not get anything on the certificate. She also than two months afterward he died, on testified that Harris told her he knew very January 15, 1910, and she brought this suit well she would not get the insurance withon the certificate in the municipal court of out she turned it over to a lawyer. Dowd Chicago, stating her claim to be for $1,000, denied that he made any such statement to as beneficiary. The certificate provided that the plaintiff as she testified to. Harris had no action should be maintained upon it un- no authority to do anything about the proofs, til after proofs of death had been filed with and was not an agent for any purpose conthe head clerk and passed upon by the board nected with the claim, but merely assisted of directors. The by-laws contained a simi- the plaintiff; as a notary, to save expense lar provision, and provided further that the to her; but he denied that he made the stateproofs should be executed in the form pre- ments claimed, and testified that while he scribed by the board of directors and upon I was writing and filling out proofs he said it

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

was questionable whether the claim would the law was taken by the court in instructbe allowed. The judgment of the Appellate ing the jury, and is not questioned. The Court settled the controverted question of hypothesis of fact stated in the instruction, fact, and it must be regarded as a fact that that it was the duty of Dowd, as clerk of the Dowd denied liability absolutely and without local camp, to furnish blanks to be filled out the qualification stated by plaintiff on cross- by the beneficiary, and when returned to him examination. The remaining facts as to to furnish them to the head clerk, was provproofs were not in controversy. Harris filled, and the jury were instructed that if such ed up part of the blanks, swore the plaintiff was his duty he was' authorized, in law, to to one of them, and advised her concern- waive proofs of death by denying liability. ing others. She went to the coroner to have It is here contended that the instruction was one of the blanks filled, and then went to right, because the relation of the local camp the undertaker to have another filled, and to the head camp was that of agency. The then took the proofs to her attorney and left law of agency applies to fraternal benefit them with him. The proofs were only par- associations just as it applies to other princi. tially completed, and the suit was begun on pals and their agents. March 2, 1910. In the evening of March 3d

[3] It is true that a local camp is agent of or the morning of March 4th the proofs, so the head camp as to some things; but it is far as they were made out, were left on the not true that it is a general agent, authorizdesk of Dowd by a boy, and on March 5th ed to do everything that the head camp or Dowd mailed them to the plaintiff, request- its officers may do. The subordinate lodge ing her to have the forms for the officiating of a benefit association, authorized to receive clergyman and attending physician filled or collect dues and transmit them to the asout. He asked her to give the matter prompt sociation, is the agent of the association for attention, so that he could forward the death

that purpose, and its acts within the scope of proofs to the head office at Rock Island. So if a subordinate lodge, with full knowl

the agency are binding on the association. That was after the suit had been begun, edge of a fact which would render a certifiand nothing further was done about the cate void, continues to receive dues from a proofs.

member, the right to forfeit the certificate on The instruction of the court to the jury account of that fact is waived. A subordion the question of waiver of proofs of death nate lodge receiving dues and paying them was quite involved and not clear, but it ad over to the principal lodge necessarily treats vised the jury that if proofs of death were the insurance as in force. The member pays not filed with the head clerk and the plain- his dues through the subordinate lodge, and tiff's claim submitted to the board of direc-if the agent has knowledge of a fact which tors for action she could not recover; but if would work a forfeiture of the certificate it Dowd, as clerk of the local camp in Chicago, should refuse to receive further dues. The had the duty to furnish the blanks for the receipt of a payment after an act which proofs to be filled out by the beneficiary, and might constitute a forfeiture is a common when they were returned it was his duty to method of waiving a forfeiture, and the furnish them to the head clerk, and he stated knowledge of the agent is the knowledge of to the plaintiff that the defendant would the principal. That rule applies where there not pay the claim, because the deceased had is a right to suspend a member for failure to committed suicide, then, in contemplation of promptly pay his dues, and where the local law, Dowd, as clerk of the local camp, rep-lodge accepts dues from a member in good resented and acted as agent of the defendant, health, who is delinquent, but has nothing to and what Dowd did and said amounted to a do to be reinstated except to pay his dues. waiver on the part of the defendant of the Order of Foresters v. Schweitzer, 171 Ill. provision that no suit should be commenced, 325, 49 N. E. 506; Coverdale v. Royal Arcaunless proofs of death were sent to the head num, 193 Ill. 91, 61 N. E. 915; Ancient Order clerk and the board of directors passed upon of United Workmen v. Lachmann, 199 Ill. the proofs and the claim, and the verdict 140, 64 N. E. 1022; Court of Honor V. should be for the plaintiff, unless the jury Dinger, 221 Ill. 176, 77 N. E. 557; Jones v. believed the insured committed suicide, in Knights of Honor, 236 Ill. 113, 86 N. E. 191, which case the verdict should be for the de- 127 Am. St. Rep. 277. In every such case fendant.

the local lodge is acting within the scope of [1] The constitution and by-laws, the ap- its agency, and its acts are binding on the asplication for membership, and the benefitsociation. The rule is the same in the case certificate together constituted the contract of a regular insurance company, where the of insurance. Alexander v. Parker, 144 Ill. agent is fully authorized to act for the com355, 33 N. E. 183, 19 L. R. A. 187; Lehman pany in respect to proofs of loss, or to asv. Clark, 174 Ill, 279, 51 N. E. 222, 43 L. R. certain and adjust the loss, and his acts are A. 648.

within the scope of his agency. Dwelling [2] The provision that plaintiff should House Ins. Co. v. Dowdall, 159 Ill. 179, 42

, furnish proofs of death, so that the defend-N. E. 606; Citizens' Ins. Co. v. Stoddard, ant could investigate the claim and ascer- 197 Ill. 330, 64 N. E. 355. It has never been

by acts not within the rule or beyond the necessity in its records, and that the resolution scope of his agency.

was not signed, or that there was no such Dowd was clerk of the local camp, and was resolution, and that notices of the public hear

, authorized, as such, to receive and transmit make the confirming ordinance void, but merely dues and assessments, and his acts in respect defective, so that such objections cannot be to his agency would bind the defendant. He raised on collateral attack, . was also furnished with blanks for proofs Corporations, Cent. Dig. $$ 1091-1093, 1160–

(Ed. Note.-For other cases, see Municipal of death, which he was to give to bene- 1165; Dec. Dig. & 493.*]

88 ficiaries, and when filled out in compliance 5. MUNICIPAL CORPORATIONS (8 513*)-PUBwith the contract he was to send them to the

LIC IMPROVEMENTS – EQUITABLE RELIEF – head clerk That was the extent of his au- ALLEGATIONS OF BILL. thority, and he had no more right to deny bill and demurrer, whether a notice of confirma

In order to determine, on a hearing on liability than he would have had to admit tion of special assessment conforms to the law, liability. He performed the acts which he in a suit to set aside the judgment of confirmawas authorized to perform, so far as he was tion, the bill should set out the notice. given an opportunity. The proofs were not [Ed. Note.-For other cases, see Municipal made when suit was brought, and the blanks, Corporations, Cent. Dig. 88 1188-1193, 1195–

] partly completed, were left on his desk after 1206; Dec. Dig. 8 513.** the beginning of the suit. The court erred

The court erred 6. EQUITY ($ 239*)—DEMURRER-ADMISSIONS

LEGAL CONCLUSIONS. in informing the jury that Dowd's duty and

A demurrer to the bill does not admit conauthority to furnish blanks to beneficiaries, clusions of law. and to send them, when completed, to the [Ed. Note. For other cases, see Equity, Cent. head clerk, conferred upon him power to Dig. $ 494; Dec. Dig. $ 239.*] waive proofs of death by denying liability. 7. MUNICIPAL CORPORATIONS (8 499*)-PUBNeither he nor the local camp had any au

LIC IMPROVEMENTS-CONFIRMATION OF As

SESSMENT-CERTIFICATE OF PUBLICATION of thority to adjust the claim or determine

NOTICE. its legality, or decide whether the defendant A certificate of publication of notice of would or would not pay it. On the admitted confirmation of an assessment for public imfacts the suit was prematurely brought, and provements, which was made by the secretary the judgments of the Appellate Court and cient where he stated that he was the author

of the corporate newspaper owner, was suffimunicipal court are reversed.

ized agent of the company. Judgment reversed.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1170, 1171; Dec.

Dig. $ 499.*] (259 Ill. 249.)

8. MUNICIPAL CORPORATIONS (8 499*)-PUB

LIC IMPROVEMENTS-COLLATERAL ATTACK ON HAUGAN et al. v. CITY OF CHICAGO et al.

PROCEEDINGS. (Supreme Court of Illinois. June 18, 1913.) Since the affidavit and certificate of pub1. MUNICIPAL CORPORATIONS ($ 122*)-ORDI- lication of notice for confirmation of an assess

ment for public improvements was merely prima NANCES.

All presumptions are in favor of ordinances facie evidence of jurisdictional facts, the affidaregularly passed.

vit and certificate of publication as to mailing (Ed. Note.-For other cases, see Municipal relied on to vitiate the judgment of confirma

and posting of notice of confirmation cannot be Corporations, Cent. Dig. $8 281-289; Dec. Dig. tion on collateral attack. $ 122.*]

[Ed. Note.--For other cases, see Municipal 2. MUNICIPAL CORPORATIONS (8 513*)—PUB- Corporations, Cent. Dig. 88 1170, 1171; Dec.

IMPROVEMENTS - PROCEEDINGS – EQUI- Dig. § 499.*] TABLE RELIEF-FRAUD.

9. MUNICIPAL CORPORATIONS (8 499*)-PUBThe fact that a property owner refrains

LIC IMPROVEMENTS - NOTICE OF CONFIRMAfrom objecting to local improvements because

TION. the board of local improvements has promised The method of notifying property owners of him that other streets in the neighborhood will confirmation of assessments for public improvealso be improved is not ground for relief in ments provided by the Local Improvement Act equity, since he is bound to know that the board (Hurd's Rev. St. 1911, c. 24), especially seccannot itself make the improvement and that tions 45, 46, and 51, is constitutional, so that the city council is not bound by the board's the mailing,' posting, and publication of notice recommendations.

and a return of process were all properly done [Ed. Note.-For other cases, see Municipal in the same term of the county court. Corporations, Cent. Dig. $$ 1188-1193, 1195

[Ed. Note.-For other cases, see Municipal 1206; Dec. Dig. § 513.*]

Corporations, Cent. Dig. SS 1170, 1171; Dec.

Dig. § 499.*) 3. JUDGMENT (8 429*)-EQUITABLE RELIEF. It is no ground for equitable relief against

Appeal from Superior Court, Cook County, a judgment that it is wrong in law or fact, if the complaining party has had an opportunity

Marcus Kavanagh, Judge. to make a defense at law and failed to do so. Suit by Charles M. Haugan and others

[Ed. Note.-For other cases, see Judgment, against the City of Chicago and others. Cent. Dig. $S 808, 810–815; Dec. Dig. § 429.*) From a decree sustaining a demurrer to 4. MUNICIPAL CORPORATIONS (493*)-PUB- the bill, plaintiffs appeal. Affirmed.

LIC IMPROVEMENTS IRREGULARITIES IN William J. Donlin, of Chicago, for appelPROCEEDINGS-COLLATERAL ATTACK.

The facts that a board of local improve-lants. Philip J. McKenna and Frank Johnments did not transcribe its first resolution of ston, Jr., both of Chicago (William H. Sexton,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Corp. Counsel, of Chicago, of counsel), for schemes were fraudulently inaugurated withappellees.

in six months after said public hearing in

December, 1910; that said four schemes are CARTER, J. This was a bill in chancery now being carried on contrary to justice and filed in the superior court of Cook county by equity, in pursuance of a fraudulent design appellants, praying that the judgment of the to avoid the reasonable requirements of said county court of Cook county confirming a districts; that said scheme for four systems special assessment for the construction of a win be but a temporary makeshift and of no local improvement, consisting of a system of permanent benefit to said territory; that sewers, be annulled and set aside and that the board in bad faith has substituted these the city of Chicago be restrained from taking last-named schemes in place of the schemes further steps therein. The trial court sus- under consideration at said public meeting tained a demurrer to the bill, and, the ap- in December, 1910. pellants electing to stand on their bill with- We deem that the foregoing sets out out amendment, the court dismissed it for sufficiently the allegations of the bill upon want of equity, whereupon an appeal · was which is based appellants' claim that the city taken to this court.

of Chicago is proceeding fraudulently to From the allegations of the bill it appears make the sewer here in question. that appellants were assessed for a system [1, 2] When an ordinance has been properof sewers in the northeastern part of the city ly passed by a municipal council, all preof Chicago; that the board of local improve-sumptions are in its favor. It is a most ments originated the system and held a common occurrence that there is a wide difpublic hearing thereon June 20, 1911; that ference of views among the property owners on the recommendation of said board the city affected, with reference to the character and council on July 6, 1911, adopted an ordinance necessity of a local improvement. From the for said improvement, and later the city allegations of the bill it is evident that some filed a petition in the county court of Cook system of sewer improvement is needed in county praying that a special assessment be the territory in question and that the only levied; that thereafter an assessment roll dispute was as to the character of the imwas filed and a default judgment and con- provement. The allegations of this bill do firmation were entered against the property not set out any facts which by any possibility of appellants for said assessment; that said could be held as showing fraud as to the imboard of local improvements let a contract provement here in question on the part of the therefor; and that work had been begun and public officials. At the most, these allegathe first voucher issued under said contract. tions simply show a difference of opinion beThe bill further alleges that on December tween the property owners and the board of 9, 1910, said board originated, at its own in- local improvements as to the kind of sewer stance, four systems of sewer improvements system that should be constructed. Furtherin the locality of and apparently covering all more, there are no charges of fraud made the property assessed for said improvement against any of the city officials except the above referred to; that on the date set for the board of local improvements. It has been public hearing of said four systems over 1,000 held by this court that the fact that the propproperty owners attended, and after a discus-erty owner, because the board of local imsion those improvements were delayed or provements has promised him that other deferred for a year; that at that time, and streets in his neighborhood will be improved, thereafter in discussions between the prop- refrains from objecting, furnishes no ground erty owners interested and the board of local for relief in equity, since he is bound to improvements, it was publicly announced by know that the board of local improvements the said representatives of the city of Chica- cannot make the improvement and that the go that the public good of the proposed terri- city council is not bound by its recommendatory to be benefited by said sewer system tions. Cosgrove v. City of Chicago, 235 Ill. could be conserved only by the construction 358, 85 N. E. 599; Ton v. City of Chicago, of a large and deep sewer in Evanston 216 Ill. 331, 74 N. E. 1044. avenue, and that on the facts brought out

The facts in Dempster v. City of Chicago, during such discussions it became the duty 175 Ill. 278, 51 N. E. 710, relied on by apof the board to adopt a first resolution and pellants, are not at all similar to those now proceed to a public hearing upon the con- before us. Neither on the facts nor the law struction of a deep main trunk sewer in is that case in point here. Evanston avenue; that the board with fraud- [3, 4] The bill alleges that the board of ulent intent demanded and required con- local improvements did not transcribe its first sents and petitions for said trunk sewer resolution in its records and that said resowhich the law did not require; that in order lution was not signed, that there was no such to avoid the protests of the property owners resolution, and that notices of the public in said territory and divide the opposition hearing were not sent to property owners the board contrived four schemes of sewer whose property abutted upon existing sewers. improvement for said territory; that one of The power of courts of equity to set aside these schemes is provided for in the ordi- and nullify judgments of law must be exer

an

were

is that it is no ground for relief in equity substance of it, nor is a copy of the judgment that a judgment is wrong in law or fact, or attached to the bill as an exhibit. both, if the complaining party had [7, 8] The bill further alleges that the ceropportunity to make a defense at law and tificate of publication of notice as to confailed so to do. Martin V. McCall, 247 Ill. firmation of the assessment does not comply 484, 93 N. E. 418. All of these objections with the law. A copy of this certificate is set referred to the acts of the board of local out, and it is claimed that it is like the one improvements preliminary to recommending held faulty in City of Chicago v. Stein, 252 the local improvement to the council. They | Ill. 409, 96 N. E. 886, Ann. Cas. 1912D, 294. could have been raised upon the hearing and In that case the certificate was signed and confirmation before the county court. None sworn to by the secretary of the Chicago Eveof the alleged defects, even if proven, would ning Post Company. The court held that the render the ordinance void but only defective. secretary of a corporation has no implied They cannot be raised in a collateral attack. authority to make such a certificate; that it This court, in Sumner v. Village of Milford, must be made by the publisher or his au

thorized agent. 214 Ill. 388, 73 N. E. 742, where similar ques

The certificate here was tions were raised, after reviewing the author- made by the secretary of the Chicago Evening ities relied on by counsel for appellants, hela Post Company, but stated that he was the that such alleged defects furnished no ground authorized agent of said company. The defor ef in equity. To the same effect are fect in the certificate in City of Chicago v. Cosgrove v. City of Chicago, supra, and Stein, supra, is not found here. There is a Martin v. McCall, supra.

further sufficient answer to the objection [5, 6] The bill further alleges, with refer- raised on this allegation. The affidavit and ence to the notice for confirmation of the certificate of publication are merely prima special assessment in the county court, “that facie evidence, on which the court may or the 'notices required by law to be mailed and may not have acted in arriving at its finding, posted

not in compliance

in a special assessment proceeding, that it with the statute and do not state the nature had jurisdiction. There may have been other of the improvement to be made, its character evidence submitted as to posting and publishor extent, and that the affidavits thereof to ing notices. The affidavit and certificate of be produced upon the trial hereof show upon allowed on a collateral attack to overthrow

publication as to mailing and posting are not their face a noncompliance with the statutory allowed on a collateral attack to overthrow

the judgment of the court. Illinois Central requirements,” etc. The special objection to these notices is that they do not state the Railroad Co. v. People, 189 Ill. 119, 59 N. E. nature, character, or extent of the improve- 609; People v. Sargent, 252 Ill. 104, 96 N. E.

847. ment. No copy of the notice is set out in the

[9] The bill further alleges that the dates of bill or attached thereto as an exhibit. In order to determine intelligently whether such within the December term of the county court,

mailing, posting, and publication were all notice is in conformity with the law, on a and that the return of process such as this hearing on bill and demurrer, the notice it- within the term and to a day of the same term self should be set out. In the case of Kedzie contravenes the Constitution and laws of the v. West Chicago Park Com’rs, 114 Ill

. 280, state, as the term is regarded as one day, and at page 285, 2 N. E. 182, at page 183, this the process must necessarily be returnable to court said with reference to a similar notice the process must necessarily be returnable to

some day of the next term. In support of in a special assessment proceeding: “But if this position counsel cites and relies on a notice was given the legality of which is de- People v. Wells, 255 Ill. 450, 99 N. E. 606. nied, a question of law is raised, and the That case lends no support to appellants' connotice given should be specifically set out, in

tention. The method of notifying property order that it may be seen whether it conforms to the requirement of the law.” To (Hurd's Rev. St. 1911, c. 24), especially sec

owners under the Local Improvement Act

Το the same effect is Ulrich v. Freedman (D. C.) tions 45, 46, and 51, has been held constitu196 Fed. 113; 16 Cyc. 236, and cases cited. tional by this court. Citizens' Savings Bank Furthermore, the allegations in the bill as to

v. City of Chicago, 215 Ill. 174, 74 N. E. 115; the substance of the notice are merely con-Gage v. City of Chicago, 225 Ill. 135, 80 N. E. clusions of law and not statements of fact. 86; McChesney v. City of Chicago, 227 Ill. The demurrer does not admit conclusions of 50, 81 N. E. 435. law.

While we have disposed of some of the obThe same answer may be made to the alle

ections raised on other grounds, the bill sets gations of the bill that the judgment of con

up no claim for which there was not an adefirmation "does not state the land for nor the quate remedy at law. The demurrer to the persons or land against whom it was ren- bill was properly sustained, and the decree of dered nor the party in whose favor it is had." | the superior court will be affirmed. The bill does not set out the judgment or the Decree affirmed.