Supreme Lodge of Ancient Order of United Workmen v. Zuhlke , 129 Ill. 298 ( 1889 )

Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit brought on March 24,1885, in the Circuit Court of Cook County, by the appellee against the Supreme Lodge of the Ancient Order of United Workmen, the Grand Lodge of the Ancient Order of United Workmen of Illinois, Wicker Park Lodge No. 104 of the Ancient Order of United Workmen, and the Ancient Order of United Workmen, the appellants. The case was tried before the Circuit judge without a jury, the jury being waived by agreement. The trial resulted in a judgment in favor of the plaintiff, which has been affirmed by the Appellate Court. Appellants prosecute their further appeal to this Court.

The suit is brought upon a beneficiary certificate, dated in January, 1881, which certifies that Edward Zuhlke, the deceased husband of the appellee, “is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2000.00, which sum shall, at his death, be paid to Florentina Zuhlke, his wife.” Zuhlke died on October 15,1881. The amended declaration, filed on October 28, 1885, consists of two special counts, which aver that the defendants issued, or caused to be issued, the certificate sued upon to Edward Zuhlke. All the defendants by their attorney filed the plea of the general issue. It was stipulated between the parties, that the defendants might “introduce all matter of evidence on the trial * * * under the plea of general issue, which they might do, had the same been properly specially pleaded.”

The first point made by the appellants is that they are not jointly liable on the certificate, and that it was error to enter judgment against them jointly.

Section 33 of the Practice Act provides, that “no person shall be permitted to deny on trial the execution * * * of any instrument in writing, whether sealed or not, upon which any action may have been brought, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” The plea of the general issue was not verified by affidavit by the defendants or either of them. When the certificate was introduced by the plaintiff upon the trial below, the defendants made no objection to its introduction.

Section 35 of the Practice Act provides, that “in actions upon contracts, express or implied, against two or more defendants as partners or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants * * * shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar, denying the partnership or joint liability or the execution of the instrument sued upon, verified by affidavit.” In this case, the defendants-did not, either or any of them, plead in abatement, or file a plea in bar, denying their joint liability or the execution of the-certificate, verified by affidavit. The language of the stipulation is not broad enough to cover the pleas verified by affidavit and in abatement, which are required by said sections 33 and 35.

Appellants invoke the well known principle that, in order to recover in an action ex contractu, a cause of action must be established against all of the defendants, (Griffith v. Furry, 30 Ill. 251; McLean v. Griswold, 22 id. 219; Goit v. Joyce, 61 id. 489); and they claim, in view of this principle, that the provision contained in section 35 as above quoted does not prevent the defendants or either of them from questioning their joint liability without such plea in abatement or verified plea, but merely relieves the plaintiff of the common law burden of proving such joint liability in the first instance. It is,, therefore, contended, that no recovery can be had, even in the absence of such a plea as is required by said section, if the evidence shows affirmatively that defendants are not jointly liable. We think that the contention of the appellants in this regard is correct, but they had the full benefit of it upon the trial below. The trial court held as law in the decision of the case the following proposition submitted by the defendants: “That, notwithstanding there is no plea in this case denying the joint liability of the defendants, if it appears from the evidence in the case that the defendants are not jointly liable, there cannot be a finding or judgment against them jointly.” Holding the law to be as thus stated, the circuit court must have found the fact to be that defendants were jointly liable. The judgment of the Appellate Court affirming the finding of the Circuit court is conclusive upon this question of fact so far as we are concerned. After a careful examination of the constitutions of these various organizations, and of the certificate, and other documentary and oral proofs in the record, we cannot say that there is no evidence tending to establish such joint liability. The defendant corporations all seem to be parts of one general system, the Supreme Lodge being apparently an aggregation of the Grand Lodges, the Grand Lodges working under the authority of the Supreme Lodge, the subordinate Lodges, like the Wicker Park Lodge, being under the jurisdiction of the Grand Lodges, and the rights and privileges of membership in either or all of the Lodges being the same as those rights and privileges in the Ancient Order of United Workmen. We do not think the first point is well taken.

It is next urged by the appellants that no recovery can be had because Edward Zulilke was in his life time expelled from the Grand Lodge. It appears, that the deceased was taken sick with “degeneration of the brain” on June 16, 1884, and that after that date he was entitled to the benefit of the sick fund. About June 27, 1884, it was charged against him, that he had made false statements in regard to his health when he joined the Lodge in December, 1880, or January, 1881, and also that he had attempted to commit suicide on June 21,1884. Proceedings for his expulsion, based mainly upon the charge of false statements made about his health when he first became a member, were begun about the 27th of June, 1884, and resulted in his expulsion on August 15, 1884.

Upon the trial before the Circuit Court, the plaintiff introduced evidence tending to show that the deceased was insane during the proceedings for his expulsion. The defendants introduced testimony tending to show that he was sane at that time. That he was insane is a fact which is established by the judgment of the Appellate Court. But the trial court modified several of the propositions submitted to it by the defendants so as to hold that the judgment of expulsion and the proceedings therefor were no bar to a recovery, if the deceased was insane when the proceedings were conducted and the judgment was rendered. Such modification is claimed by the appellants to be error. They insist that, by reason of such expulsion, there can be no recovery in this case even if the deceased was insane during the proceedings, which resulted in expulsion.

If the tribunal, which expelled Zuhlke had no jurisdiction, then the judgment of expulsion was void. Such judgment, as presented by this record, must be regarded as a consent judgment, or a judgment by confession. In the first place, whatever jurisdiction was acquired over the person of the deceased was so acquired by his appearance, and not by the service of process or notice upon him as prescribed by the constitution of the Lodge. Section 2 of article 16 of the constitution provides for a special committee of three members to investigate the alleged offense, and to prefer charges against the accused member, if they think there are grounds therefor, and to take charge of the prosecution on the part of the Lodge. Section 3 provides that the charges so preferred “shall be read in open Lodge at the next stated meeting thereafter, and the Recorder shall immediately furnish a copy thereof under the seal of the Lodge to the member so accused, and at the same time cite said member to appear before the Lodge at the second stated meeting thereafter, when the matter will be taken up for consideration, at which time, if the charges are not withdrawn, a committee of five members shall be appointed.” Section 4 provides, that the charges shall be referred to this committee of five, and that they shall examine the party, witnesses, etc.

A record is produced, which purports to be full and complete, of the proceedings of expulsion before the Lodge, and also before the trial committee of five members. It nowhere appears, that a copy of the charges against him was furnished

to Zuhlke, or that he was cited to appear before the Lodge at the second stated meeting, or that he ever appeared before the Lodge at all. On August 1,1884, there was a meeting of the Lodge, at which the charges were preferred, and, at the same-meeting, a trial committee of five was appointed in the absence-of Zuhlke, and without any citation to him to appear, and without any notice to him of the charges. On the same day the trial committee met and resolved to hear evidence on August 5, 1884, and instructed their secretary to summon Zuhlke to appear on that day. On August 5,1884, the committee of five met and examined witnesses. Zuhlke appeared at this meeting of the committee and was questioned by them,, and then for the first time the charges were read to him. It is not shown whether he had been summoned by the secretary or not. Some testimony was also taken on August 7, but Zuhlke does not appear to have been present. At another meeting of the committee on August 14, 1884, Zuhlke was present, and the testimony was read over to him, and he was-asked some questions in regard to it. He is not shown to have been present on any other occasions than at the meetings-of the committee on the 5th and 14th days of August. The-report of the committee sustaining the charges was dated August 14, and presented to the open Lodge, and adopted on< August 15 in the absence of the accused and of his counsel. The only counsel, which the deceased had, was one Both, a saloon-keeper, who is not shown to have been present at any time except before the committee on August 14.

In the second place, the judgment of expulsion, which was nothing more than the adoption by the Lodge of the report of the committee of five, is based mainly upon the admissions of the accused as to the truth of the charges against him. On August 5, he admitted that he had had spells of sickness as far back as 1878 and 1879. On August 14 he made the same admissions, and at that time Both declined to oppose his expulsion for the alleged reason, that he had admitted the charge to be true. The committee in their report find “brother Ed Zuhlke guilty of above mentioned charges, while (which) brother Zuhlke does not dispute.”

It thus appears, that the judgment of expulsion rests upon the appearance of the accused, and upon his admissions of facts. Appearance and admissions involve the element of consent. If a man is brought into court, not by service of process, but by an entry of his appearance, he must be intelligent enough to comprehend the meaning of his act. If he admits a fact to be true, such admission cannot bind him, unless he has mental capacity enough to understand its force and effect. So far as this court is concerned, it is an established fact, that the accused entered his appearance in the expulsion proceedings and therein admitted the truth of the charges against him while he was insane. In Bradford v. Abend, 89 Ill. 78, we said: “the bill was filed in the name of the insane wife against her husband for divorce. * * * It is a matter of no consequence, who advised the filing of the bill. * * * Being insane she could give no consent to the proceedings had in the divorce ease, and hence everything that was done in her name was invalid. Consent involves an act of reason, and when one is bereft of reason it follows there can be no consent given that comes from reflection.” This language is strictly applicable to the relations of the deceased Zuhlke to the proceedings for his expulsion. Being insane he was incapable of giving that consent, upon which alone those proceedings can rest for their validity. We are of the opinion that the trial court committed no error in modifying the propositions of law, submitted to it, in the respect above indicated.

The judgment below was for'the $2000.00 named in the certificate without interest. ’ The appellee assigns as cross-error that she was allowed no interest. It is in evidence, that on October 24, 1884, appellee gave the appellants written notice of her husband’s death on October 15, 1884, and made a written demand for the payment of the $2000.00. We know of no reason why she is not entitled to interest from the date of such notice at the rate of six per cent per annum. (Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Mass. M. L. Ins. Co. v. Robinson, 98 id. 324). The judgments of the Circuit and Appellate Courts are correct as far as they go, but they should have allowed interest. The interest on $2000.00 at the above rate from October 24, 1884, to the present term of this Court is $553.33. Judgment is therefore hereby rendered in this Court in favor of the appellee for $2553.33.

Judgment affirmed and modified.