Slike stranica

(259 Ill. 102)

blanks furnished by the head clerk. The

LOVE v. MODERN WOODMEN OF AMER- certificate also provided that it should be

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

For other definitions, see Words and Phrases, liquor. There was a trial and a verdict vol. 4, pp. 3674-3677.]

[merged small][merged small][merged small][ocr errors]

OF A provision of a mutual benefit certificate, requiring beneficiary to furnish proofs of death before any action would lie on the certificate, was valid and binding.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1963-1965; Dec. Dig. § 789.*] 3. INSURANCE (§ 789*)-MUTUAL BENEFIT AS

SOCIATIONS-LOCAL LODGE - SECRETARY AUTHORITY-PROOFS OP Loss-WAIVER. Where the secretary of a local camp of a mutual benefit society was authorized to collect and remit assessments and in case of death to deliver blanks for proofs of death, and when executed to transmit them to the secretary of the head clerk of the head camp, such local secretary had no authority to waive a beneficiary's duty to submit proofs of death by informing her that it was useless to make them, as the head camp would not pay the loss.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1963-1965; Dec. Dig. § 789.*]

Appeal from Appellate Court, First District, on Error to Municipal Court of Chicago; Max Eberhardt, Judge.

Action by Nellie Love against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals on a certificate of importance. Reversed.

Truman Plantz and George G. Perrin, both of Rock Island, and A. W. Fulton, of Chicago, for appellant. Kretzinger, Rooney & Kretzinger, of Chicago, for appellee.

CARTWRIGHT, J. The appellant, the Modern Woodmen of America, issued its benefit certificate, dated November 29, 1909, signed by C. W. Hawes, head clerk, to Nathan D. Love, a member of the local camp in Chicago, for $1,000, payable on his death to his wife, the appellee, Nellie Love. Less than two months afterward he died, on January 15, 1910, and she brought this suit on the certificate in the municipal court of Chicago, stating her claim to be for $1,000, as beneficiary. The certificate provided that no action should be maintained upon it until after proofs of death had been filed with the head clerk and passed upon by the board of directors. The by-laws contained a similar provision, and provided further that the proofs should be executed in the form prescribed by the board of directors and upon

for the appellee for $1,000. Judgment was entered on the verdict, and the Appellate Court for the First District affirmed the judgment and granted a certificate of importance.

Proofs of death, as required by the consent to the head clerk, or passed upon by tract of insurance, were not furnished or the board of directors of the defendant. Notwithstanding the failure to comply with the contract, the plaintiff claimed a right to maintain her action, on the ground that the defendant had denied liability and therefore waived the proofs. William P. Dowd was clerk of the local camp of which Love was a member, and two or three days after the death of Love he went to the residence of the widow, filled out a preliminary notice of the death, and told her to come to his office in the Ashland block, and he would have John Harris help her fill out the death proofs without any cost to her. Four or five days afterward the plaintiff went to Dowd's office, and he furnished her with blanks for the proofs and took her into the adjoining room of John Harris, an attorney and notary public, who solicited new members for the defendant. Dowd introduced her to Harris and requested him to assist her. Harris said he would help her fill out the papers and act as notary public, and it would not cost her anything. She testified that Dowd told her, when she came to his office, that he was sorry for her trouble, but he knew there would not be any use, and she would not get the insurance, because her husband committed suicide; or, as she stated on cross-examination, he told her that if her husband has committed suicide she could not get anything on the certificate. She also testified that Harris told her he knew very well she would not get the insurance without she turned it over to a lawyer. Dowd denied that he made any such statement to the plaintiff as she testified to. Harris had no authority to do anything about the proofs, and was not an agent for any purpose connected with the claim, but merely assisted the plaintiff; as a notary, to save expense to her; but he denied that he made the statements claimed, and testified that while he was writing and filling out proofs he said it


the law was taken by the court in instructing the jury, and is not questioned. hypothesis of fact stated in the instruction, that it was the duty of Dowd, as clerk of the local camp, to furnish blanks to be filled out by the beneficiary, and when returned to him to furnish them to the head clerk, was prov

was questionable whether the claim would be allowed. The judgment of the Appellate Court settled the controverted question of fact, and it must be regarded as a fact that Dowd denied liability absolutely and without the qualification stated by plaintiff on crossexamination. The remaining facts as to proofs were not in controversy. Harris fill-ed, 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 princitially completed, and the suit was begun on pals and their agents. March 2, 1910. In the evening of March 3d or the morning of March 4th the proofs, so far as they were made out, were left on the desk of Dowd by a boy, and on March 5th Dowd mailed them to the plaintiff, requesting her to have the forms for the officiating clergyman and attending physician filled out. He asked her to give the matter prompt attention, so that he could forward the death proofs to the head office at Rock Island. That was after the suit had been begun, and nothing further was done about the proofs.

[3] It is true that a local camp is agent of the head camp as to some things; but it is not true that it is a general agent, authorized to do everything that the head camp or The subordinate lodge its officers may do. of a benefit association, authorized to receive or collect dues and transmit them to the association, is the agent of the association for that purpose, and its acts within the scope of So if a subordinate lodge, with full knowlthe agency are binding on the association. edge of a fact which would render a certifi cate void, continues to receive dues from a member, the right to forfeit the certificate on account of that fact is waived. A subordinate lodge receiving dues and paying them over to the principal lodge necessarily treats the insurance as in force. The member pays his dues through the subordinate lodge, and


The instruction of the court to the jury on the question of waiver of proofs of death was quite involved and not clear, but it advised the jury that if proofs of death were not filed with the head clerk and the plaintiff'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 Dowd, as clerk of the local camp in Chicago, had the duty to furnish the blanks for the proofs to be filled out by the beneficiary, and when they were returned it was his duty to furnish them to the head clerk, and he stated to the plaintiff that the defendant would not pay the claim, because the deceased had committed suicide, then, in contemplation of law, Dowd, as clerk of the local camp, represented and acted as agent of the defendant, and what Dowd did and said amounted to a waiver on the part of the defendant of the provision that no suit should be commenced, unless proofs of death were sent to the head clerk and the board of directors passed upon the proofs and the claim, and the verdict should be for the plaintiff, unless the jury believed the insured committed suicide, in which case the verdict should be for the defendant.

[1] The constitution and by-laws, the application for membership, and the benefit certificate together constituted the contract of insurance. Alexander v. Parker, 144 Ill. 355, 33 N. E. 183, 19 L. R. A. 187; Lehman v. Clark, 174 Ill. 279, 51 N. E. 222, 43 L. R. A. 648.

[2] The provision that plaintiff should furnish proofs of death, so that the defendant could investigate the claim and ascer

would work a forfeiture of the certificate it should refuse to receive further dues. receipt of a payment after an act which might constitute a forfeiture is a common method of waiving a forfeiture, and the knowledge of the agent is the knowledge of the principal. That rule applies where there is a right to suspend a member for failure to promptly pay his dues, and where the local lodge accepts dues from a member in good health, who is delinquent, but has nothing to do to be reinstated except to pay his dues. Order of Foresters v. Schweitzer, 171 Ill. 325, 49 N. E. 506; Coverdale v. Royal Arcanum, 193 Ill. 91, 61 N. E. 915; Ancient Order of United Workmen v. Lachmann, 199 Ill. 140, 64 N. E. 1022; Court of Honor v. Dinger, 221 Ill. 176, 77 N. E. 557; Jones v. Knights of Honor, 236 Ill. 113, 86 N. E. 191, 127 Am. St. Rep. 277. In every such case the local lodge is acting within the scope of its agency, and its acts are binding on the association. The rule is the same in the case of a regular insurance company, where the agent is fully authorized to act for the company in respect to proofs of loss, or to ascertain and adjust the loss, and his acts are within the scope of his agency. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179, 42 N. E. 606; Citizens' Ins. Co. v. Stoddard, 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 ing were not sent to property owners, would not resolution, and that notices of the public hearmake the confirming ordinance void, but merely defective, so that such objections cannot be raised on collateral attack.

Dowd was clerk of the local camp, and was authorized, as such, to receive and transmit dues and assessments, and his acts in respect to his agency would bind the defendant. He was also furnished with blanks for proofs Corporations, Cent. Dig. §§ 1091-1093, 1160of death, which he was to give to bene-1165; Dec. Dig. § 493.*] ficiaries, and when filled out in compliance 5. MUNICIPAL CORPORATIONS (§ 513*)-PUBEQUITABLE RELIEF

with the contract he was to send them to the head clerk That was the extent of his au

thority, and he had no more right to deny liability than he would have had to admit liability. He performed the acts which he was authorized to perform, so far as he was given an opportunity. The proofs were not made when suit was brought, and the blanks, partly completed, were left on his desk after the beginning of the suit. The court erred in informing the jury that Dowd's duty and authority to furnish blanks to beneficiaries, and to send them, when completed, to the head clerk, conferred upon him power to waive proofs of death by denying liability. Neither he nor the local camp had any authority to adjust the claim or determine its legality, or decide whether the defendant would or would not pay it. On the admitted facts the suit was prematurely brought, and the judgments of the Appellate Court and municipal court are reversed. Judgment reversed.

(259 I11. 249.)

[Ed. Note.-For other cases, see Municipal




bill and demurrer, whether a notice of confirmaIn order to determine, on a hearing on tion of special assessment conforms to the law, in a suit to set aside the judgment of confirmation, the bill should set out the notice.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1188-1193, 1195– 1206; Dec. Dig. § 513.*]

6. EQUITY (§ 239*)-DEMURRER-ADMISSIONS— LEGAL CONCLUSIONS. A demurrer to the bill does not admit conclusions of law.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 494; Dec. Dig. § 239.*]



A certificate of publication of notice of confirmation of an assessment for public improvements, which was made by the secretary of the corporate newspaper owner, was sufficient where he stated that he was the authorized agent of the company.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1170, 1171; Dec. Dig. $499.*1



HAUGAN et al. v. CITY OF CHICAGO et al. (Supreme Court of Illinois. June 18, 1913.) 1. MUNICIPAL CORPORATIONS (§ 122*)-ORDI-lication of notice for confirmation of an assess

[blocks in formation]


The fact that a property owner refrains from objecting to local improvements because the board of local improvements has promised him that other streets in the neighborhood will also be improved is not ground for relief in equity, since he is bound to know that the board cannot itself make the improvement and that the city council is not bound by the board's recommendations.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1188-1193, 1195– 1206; Dec. Dig. § 513.*]


Since the affidavit and certificate of pubment for public improvements was merely prima facie evidence of jurisdictional facts, the affidavit and certificate of publication as to mailing relied on to vitiate the judgment of confirmaand posting of notice of confirmation cannot be tion on collateral attack.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1170, 1171; Dec. Dig. § 499.*]


The method of notifying property owners of confirmation of assessments for public improvements provided by the Local Improvement Act (Hurd's Rev. St. 1911, c. 24), especially sections 45, 46, and 51, is constitutional, so that the mailing, posting, and publication of notice and a return of process were all properly done in the same term of the county court.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1170, 1171; Dec. Dig. § 499.*]

Appeal from Superior Court, Cook County, Marcus Kavanagh, Judge.

Suit by Charles M. Haugan and others against the City of Chicago and others. From a decree sustaining a demurrer to the bill, plaintiffs appeal. Affirmed.

It is no ground for equitable relief against a judgment that it is wrong in law or fact, if the complaining party has had an opportunity to make a defense at law and failed to do so. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 808, 810-815; Dec. Dig. § 429.*1 4. MUNICIPAL CORPORATIONS (§ 493*)-PUBLIC 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,

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 will 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 without amendment, the court dismissed it for want of equity, whereupon an appeal was taken to this court.

[ocr errors]

From the allegations of the bill it appears that appellants were assessed for a system of sewers in the northeastern part of the city of Chicago; that the board of local improvements originated the system and held a public hearing thereon June 20, 1911; that on the recommendation of said board the city council on July 6, 1911, adopted an ordinance for said improvement, and later the city filed a petition in the county court of Cook county praying that a special assessment be levied; that thereafter an assessment roll was filed and a default judgment and confirmation were entered against the property of appellants for said assessment; that said board of local improvements let a contract therefor; and that work had been begun and the first voucher issued under said contract. The bill further alleges that on December 9, 1910, said board originated, at its own instance, four systems of sewer improvements in the locality of and apparently covering all the property assessed for said improvement above referred to; that on the date set for the public hearing of said four systems over 1,000 property owners attended, and after a discussion those improvements were delayed or deferred for a year; that at that time, and thereafter in discussions between the property owners interested and the board of local improvements, it was publicly announced by the said representatives of the city of Chicago that the public good of the proposed territory to be benefited by said sewer system could be conserved only by the construction of a large and deep sewer in Evanston avenue, and that on the facts brought out during such discussions it became the duty of the board to adopt a first resolution and proceed to a public hearing upon the construction of a deep main trunk sewer in Evanston avenue; that the board with fraudulent intent demanded and required consents and petitions for said trunk sewer which the law did not require; that in order to avoid the protests of the property owners in said territory and divide the opposition the board contrived four schemes of sewer improvement for said territory; that one of these schemes is provided for in the ordi

We deem that the foregoing sets out sufficiently the allegations of the bill upon which is based appellants' claim that the city of Chicago is proceeding fraudulently to make the sewer here in question.

[1, 2] When an ordinance has been properly passed by a municipal council, all presumptions are in its favor. It is a most common occurrence that there is a wide difference of views among the property owners affected, with reference to the character and necessity of a local improvement. From the allegations of the bill it is evident that some system of sewer improvement is needed in the territory in question and that the only dispute was as to the character of the improvement. The allegations of this bill do not set out any facts which by any possibility could be held as showing fraud as to the improvement here in question on the part of the public officials. At the most, these allegations simply show a difference of opinion between the property owners and the board of local improvements as to the kind of sewer system that should be constructed. Furthermore, there are no charges of fraud made against any of the city officials except the board of local improvements. It has been held by this court that the fact that the property owner, because the board of local improvements has promised him that other streets in his neighborhood will be improved, refrains from objecting, furnishes no ground for relief in equity, since he is bound to know that the board of local improvements cannot make the improvement and that the city council is not bound by its recommendations. Cosgrove v. City of Chicago, 235 Ill. 358, 85 N. E. 599; Ton v. City of Chicago, 216 Ill. 331, 74 N. E. 1044.

The facts in Dempster v. City of Chicago, 175 Ill. 278, 51 N. E. 710, relied on by appellants, are not at all similar to those now before us. Neither on the facts nor the law is that case in point here.

[3, 4] The bill alleges that the board of local improvements did not transcribe its first resolution in its records and that said resolution was not signed, that there was no such resolution, and that notices of the public hearing were not sent to property owners whose property abutted upon existing sewers. The power of courts of equity to set aside and nullify judgments of law must be exer

[7, 8] The bill further alleges that the certificate of publication of notice as to confirmation of the assessment does not comply with the law. A copy of this certificate is set out, and it is claimed that it is like the one held faulty in City of Chicago v. Stein, 252 Ill. 409, 96 N. E. 886, Ann. Cas. 1912D, 294. In that case the certificate was signed and sworn to by the secretary of the Chicago Evening Post Company. The court held that the secretary of a corporation has no implied authority to make such a certificate; that it must be made by the publisher or his auThe certificate here was thorized agent.

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 an opportunity to make a defense at law and failed so to do. Martin v. McCall, 247 Ill. 484, 93 N. E. 418. All of these objections referred to the acts of the board of local improvements preliminary to recommending the local improvement to the council. They could have been raised upon the hearing and confirmation before the county court. None of the alleged defects, even if proven, would render the ordinance void but only defective. They cannot be raised in a collateral attack. This court, in Sumner v. Village of Milford, 214 Ill. 388, 73 N. E. 742, where similar questions were raised, after reviewing the author-made by the secretary of the Chicago Evening ities relied on by counsel for appellants, held Post Company, but stated that he was the that such alleged defects furnished no ground authorized agent of said company. The defor relief 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 raised on this allegation. The affidavit and certificate of publication are merely prima facie evidence, on which the court may or may not have acted in arriving at its finding, in a special assessment proceeding, that it had jurisdiction. There may have been other evidence submitted as to posting and publishing notices. . The affidavit and certificate of allowed on a collateral attack to overthrow publication as to mailing and posting are not the judgment of the court. Illinois Central Railroad Co. v. People, 189 Ill. 119, 59 N. E. 609; People v. Sargent, 252 Ill. 104, 96 N. E.

[5, 6] The bill further alleges, with reference to the notice for confirmation of the special assessment in the county court, "that the notices required by law to be mailed and posted * * * were not in compliance with the statute and do not state the nature of the improvement to be made, its character or extent, and that the affidavits thereof to be produced upon the trial hereof show upon their face a noncompliance with the statutory requirements," etc. The special objection to these notices is that they do not state the these notices is that they do not state the nature, character, or extent of the improvement. No copy of the notice is set out in the bill or attached thereto as an exhibit. In


[9] The bill further alleges that the dates of 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 v. West Chicago Park Com'rs, 114 Ill. 280, at page 285, 2 N. E. 182, at page 183, this at page 285, 2 N. E. 182, at page 183, this

court said with reference to a similar notice

in a special assessment proceeding: "But if a notice was given the legality of which is denied, a question of law is raised, and the notice given should be specifically set out, in order that it may be seen whether it conforms to the requirement of the law." To the same effect is Ulrich v. Freedman (D. C.) 196 Fed. 113; 16 Cyc. 236, and cases cited. Furthermore, the allegations in the bill as to the substance of the notice are merely conclusions of law and not statements of fact. The demurrer does not admit conclusions of


The same answer may be made to the alle gations of the bill that the judgment of confirmation "does not state the land for nor the persons or land against whom it was rendered nor the party in whose favor it is had." The bill does not set out the judgment or the

contravenes the Constitution and laws of the state, as the term is regarded as one day, and state, as the term is regarded as one day, and the process must necessarily be returnable to

some day of the next term. In support of


this position counsel cites and relies People v. Wells, 255 Ill. 450, 99 N. E. 606. That case lends no support to appellants' contention. The method of notifying property (Hurd's Rev. St. 1911, c. 24), especially secowners under the Local Improvement Act tions 45, 46, and 51, has been held constitutional by this court. Citizens' Savings Bank v. City of Chicago, 215 Ill. 174, 74 N. E. 115; Gage v. City of Chicago, 225 Ill. 135, 80 N. E. 86; McChesney v. City of Chicago, 227 Ill. 450, 81 N. E. 435.

While we have disposed of some of the objections raised on other grounds, the bill sets up no claim for which there was not an adequate remedy at law. The demurrer to the bill was properly sustained, and the decree of the superior court will be affirmed.

Decree affirmed.

« PrethodnaNastavi »