Luckey v. Yeomen of America , 141 Ill. App. 332 ( 1908 )

Mr. Justice Dibell

delivered the opinion of the court.

It is contended by appellee that the decree sustaining the demurrer to appellant’s bill in equity, which prayed for the same relief here sought, and dismissing said bill for want of equity, is a bar to this proceeding at law under section 66 of the Practice Act of 1872, which is substantially the same as section 89 of the Practice Act of 1907. We are of opinion that it was not such a bar, under the principles laid down in Farmers’ & Mechanics’ Life Assn. v. Caine, 123 Ill. App. 419, and 224 Ill. 599.

The home office of appellant was in Kane county. Section 1 of the act of June 21, 1895, concerning the jurisdiction of Circuit Courts in cases against insurance companies, provides that the courts of record of the county where the plaintiff resides shall have jurisdiction of actions commenced by any individual against any insurance company and that process issued in any such case may be directed to any county in the state for service. Appellant insists that the words “may” in that statute should be read “shall,” and that it was essential to jurisdiction that the summons in this case should have been sent to the sheriff of Kane county to execute. We conclude that the statute just referred to was intended for cases against insurance companies where the plaintiff could not find in his own county where he instituted the suit any agent of the insurance company upon which service of process against such insurance company could lawfully be had; but that section 4 of the Practice Act of 1872 was not intended to be repealed thereby or to be made inapplicable to insurance companies who had in the county where the suit was brought an agent upon whom service might be had. That section authorizes service upon an incorporated company by leaving a copy thereof with the president, if he can be found in the county where the suit was brought, and if he shall not be found in such county, then by leaving a copy with any clerk, secretary, agent, etc. We are of opinion that this summons was properly addressed to the sheriff of La Salle county, if any person could be found in said county upon whom service could lawfully be had.

The return to the summons in this case showed service upon the within named Yeomen of America by reading the same to and by leaving a copy thereof with ‘ ‘ T. J. Bute, secretary and an agent of the within named The Yeomen of America,” the president of said The Yeomen of America not being found in the county. Appellant contends that Bute was not a person upon whom service of a summons against appellant could lawfully be had. At the close of the certificate upon which this suit was brought, as it appears upon page 48 of the record, where it is apparently reproduced substantially in facsimile, the attestation clause is on the right-hand side, while on the left-hand side is the seal of the supreme council, and underneath it, still opposite said attestation clause, is a seal bearing the following impression: “Grand Ridge Council No. 212 Grand Ridge (Seal) Illinois. Yeomen of America.” Below this are the signatures of the supreme president and the supreme secretary, followed by an acceptance of the certificate by Charles Luckey, underneath which is the following: “We the undersigned, President and Secretary of Grand Ridge Council No. 212 of the Yeomen of America, do hereby countersign and attach the seal of this council hereto this 9th day of September, 1903. T. J. Bute, Secretary. J. S. Dearth, President.” It will therefore be seen that the certificate itself bears evidence that Bute was the secretary of the local council of appellant at Grand Ridge and that his official signature as secretary and his affixing of the seal of the local council were essential to the validity of the certificate. The proof shows that he continued to hold that office from that time till the service of this summons upon him and until the hearing of the proofs on default and the entry of the judgment. Appellant offered in evidence a transcript of the proof taken before the court upon default, upon which the judgment was based. That transcript shows that Bute was a witness at that hearing. He there testified that he was “acting as secretary” of appellant, and it is, argued that a person merely acting as secretary would not be one upon whom service of summons could be had. But it is plain from his entire examination that he meant that he was the secretary of the Grand Ridge Council, No. 212, of the Yeomen of America, and has ever since been such secretary. It was'held in Grand Lodge A. O. U. W. v. Lochmann, 199 Ill. 140, that in Illinois the relation of subordinate lodges to the grand lodge in societies of this kind is that of agency, and in Court of Honor v. Dinger, 221 Ill. 176, that the officers of the subordinate lodge act - as agents of the supreme lodge. While an affidavit read in evidence by appellant denies that Bute was the secretary or even a member of appellant, it is not denied but that he was when the summons was served and when the trial was had the secretary of the Grand Ridge Council of appellant and a member thereof. We hold that the service upon him was sufficient. That service was had on June 1, 1906. The proofs show without contradiction that appellant had at or about that time at Ottawa an attorney, who was also the local agent of appellant at Ottawa, who advised appellant of the pendency of this suit at its head office in Aurora before June 15th. The president states that he did not know of the commencement of the suit until about July 10, 1906, but there is no showing but that the secretary of appellant at its home office or some other officer may have immediately known of the commencement of said suit. The affidavits of Silsbee, president of appellant, and Haight, attorney for appellee, show that in the latter part of June, or early in July, 1906, they were in communication with each other by personal interview and by telephone concerning the pending suit. There is a sharp controversy between them as to exactly what occurred. Silsbee alleges that he convinced Haight that he should amend and make Charles Luckey the plaintiff, and that Haight agreed to do so and to send him a copy of the declaration when filed; and agreed that nothing further should be done in court except to make the amendment and to file the declaration, till Haight sent a copy of the declaration to Silsbee ; that then Silsbee would enter the general appearance of appellant and intended to file pleas (which of itself shows that he did not then intend to rely upon the insufficiency of service now alleged); that he did not receive a copy of the declaration, and paid no further attention to the case, in reliance upon Haight’s promise, and did not know of the default and judgment until after that term had expired and an execution had been placed in the hands of the sheriff of Kane county. Haight alleges that there was no agreement to change the name of the plaintiff back to Charles Luckey; that he applied to Silsbee for a copy of the application and of the proofs of disability, and stated to Silsbee that he could not well draw the declaration without said proofs of disability; that Silsbee promised to send them to him; that later he again called upon Silsbee for said proofs of disability and had another promise that they should be sent him; that he never received such proofs, and became satisfied that Silsbee was deceiving him, and thereafter proceeded without further intercourse with the head office. It will thus be seen that from the time the president was fully informed of the nature and pendency of the suit, and from the time that defendant’s local attorney knew thereof, till the judgment was rendered, was about six months, and that from the filing of the declaration till the default was about three and one-half months.

Appellant argues that this action could not be maintained in the name of Laura Luckey, but that the cause of action was in Charles Luckey, the member, so long as he lived, and that Laura Luckey had no cause of action except in the event of the death of Charles Luckey. From an examination of the various sections of the hy-laws relating to this subject it would seem to be a reasonable inference from the rather ambiguous language used therein that they intend that the member shall be the one who shall receive payment for disabilities, and that the beneficiary named shall only receive payment in case of the death of the member. But this certificate does not so read. It provides that appellant “hereby promises and binds itself to pay out of its reserve fund to Laura Luckey, related as mother, a sum not exceeding $2,000, in accordance with and under the provisions of section 120 of the laws governing said fund, upon satisfactory evidence of the death or disability of said member, ’ ’ the member having been previously named as “Charley” Luckey. Said section 120 of the by-laws relates to the death of the member only, and other sections cover the subject of partial disability and total disability. If, therefore, in the part just quoted “or disability” had been omitted, then it would be clear that Laura Luckey had no cause of action during the life of the member. But the promise here is to pay to Laura Luckey upon “the death or disability of said member,” and there is no other promise in this certificate to pay anything to anyone. It is therefore obvious that if the suit had been prosecuted in the name of the member, he was liable to be met with the defense- that the money by the express terms of the contract was payable only to his mother. How the certificate came to be made to read as it does is not explained. The by-laws in question had been in force only a little over three months, and it may be that this was an old form of certificate which conformed to previous by-laws. Be that as it may, appellee ought not to be deprived of a recovery because of the by-laws when suing upon a contract expressly made payable to herself alone. But we regard this as immaterial for another reason. Charles Luckey brought the suit. On his motion Laura Luckey was substituted as plaintiff. He was a witness at the hearing after the default. He is bound by the judgment and would be estopped from bringing a suit in bis own name upon this certificate after his mother had recovered the full amount due.

The disability alleged is total blindness of both eyes. The bill in equity asserted that the member is not totally blind. Ño such point was made upon the motion to vacate the judgment. The proofs taken upon the default and offered by appellant upon the hearing of this motion show that Charles Luckey is practically totally blind and irrecoverably so. It is true that he can discern with one eye the difference between a strong light and total darkness, but he cannot see any visible objects nor distinguish the windows in a room by looking at them, and his affliction is undoubtedly total disability.

There are two respects in which the judgment is not in harmony with the by-laws. It is for too large a sum. The promise is not to pay $2,000, but a sum not exceeding $2,000. It is clear that the payment is to be made pursuant to the by-laws. Section 106 thereof defines total disability and includes the disability of total blindness and provides for the payment in such case of “the full certificate, less unpaid costs,” after proofs of disability, etc. Section 108 provides that the unpaid balance of the purchase price shall be deducted from the certificate. Section 109 is as follows: “Our Plan—Justice to All—Is understood to mean that all members shall pay the cost price for their insurance regardless of the date of death. In computing the cost of Insurance on our tables, the monthly payments are figures to seventy years of age on all ages below fifty, and expectancy tables are used for all ages above and including fifty years of age.” Section 110 provides, among other things, as follows: “If death or disability occurs previous to reaching seventy years of age or expectancy period, the unpaid monthly payments for the unexpired time will be deducted from the certificate.” Appellant had two classes of certificates, called “A” and “B.” Section 117 of the bylaws is a table of rates under certificate “B.” Charles Luckey’s nearest birthday at the time of the application for insurance was the eighteenth. The rates for certificate “B” required a person of that age to pay forty cents per month on each $1,000 of insurance. He therefore paid eighty cents per month. Silsbee testified that up to and including the month of December, 1906, Charles Luckey had paid into the order for forty months, or $32. As he paid eighty cents per month, and was insured at the age of eighteen, the by-laws required him to pay eighty cents per month for fifty-twó years, or for 624 months. The total sum he would therefore have to pay for his insurance, if he had continued to pay till he reached the age of seventy years would be $499.20. That sum, deducted from $2,000, would leave $1,500.80. According to the by-laws his certificate, therefore, was treated as worth the net value of $1,500.80 at the time it was issued. He paid $32 in monthly payments. Therefore, according to the plan of the society, the net value of his policy on December 31, 1906, just before this judgment was entered, was $1,532.80, and the judgment was for $617.20 more than the liability of the company upon said certificate. We do not feel called upon to decide whether it was wise or reasonable for such a. society to require its members to pay the cost of the insurance till the member would have reached the age ' of seventy years, regardless of whether the insurance is kept in force that long. It is sufficient in this action at law that the certificate and by-laws show that that is the contract between the member and the society. It is' perhaps due to the trial court to say that if the transcript of the evidence heard upon the default contained all the evidence presented to the court below, as seems to have been admitted on the hearing of the motion, then the trial court in rendering judgment did not have before it the by-laws, but acted on the supposition that the certificate was a promise to pay $2,000 upon total disability.

It is contended by appellee that if the amount is too large, it cannot be corrected on this motion. The scope and purpose of the motion are defined in the late cases of Mitchell v. King, 187 Ill. 452; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85; Tosetti Brewing Co. v. Koehler, 200 Ill. 369; Pisa v. Resek, 206 Ill. 344, and Domitzski v. Am. Linseed Oil Co., 221 Ill. 161. From these cases it may well be doubted whether relief merely as to the amount of the judgment can be granted on this motion. But there are two considerations tending to the opposite conclusion: First, the failure to credit appellant with the “unpaid cost” was an error in fact arising from the failure of appellee to present the bylaws to the trial court. Second, appellee by her demurrer has induced the court to hold that there was no remedy in equity, obviously because there was this remedy at law. If we hold now that relief against this excess cannot be granted in this motion at law, we shall be met at the next term by a writ of error in the chancery cause and shall be compelled to hold that relief should have been granted in that cause. We conclude that appellee, having procured the dismissal of the bill in equity without a hearing, should not now be permitted to object to the granting of this relief here.

The judgment is unauthorized by the by-laws in another particular. This certificate belonged in class “B.” An examination of sections 108, 110, 117 and 118 of the by-laws shows that certificates under class “ B ” are not to be paid in cash down, but that payments of 20 per cent, annually will be made for five years instead of in a lump sum. It would therefore seem from the by-laws that appellee was entitled to recover $306.56 annually for five years, instead of $1,532.80 at once. We however do not feel called upon to correct this in this proceeding. First. It would be a dilatory defense, if interposed, and does not affect the amount of the liability of appellant. Second. Silsbee testified that the net value of the policy on December 31, 1906, was $1,532.80, and being asked by the court whether his understanding of the by-laws was that there would have to be a suit for each separate installment as it became due, gave an answer which showed that he himself was in doubt as to the meaning of the by-laws on that subject. Third. In the bill in equity filed by appellant and sworn to by Silsbee it was alleged that under the by-laws 20 per cent, was payable after due proof of disability and allowance of the claim and that the balance was payable in sixteen equal quarterly instalments, payable on the last days of March, June, September and December following the first payment, and this although section 18 of the by-laws attached to the bill of complaint as an exhibit provides for “five annual payments in case of disability.” As the officers of appellant are in so much doubt as to the meaning of the by-laws on this subject, "we shall not undertake to enforce them.

The order is therefore reversed and the cause is remanded with directions to the court below, if plaintiff shall remit $617.20 of the principal of the judgment, then to enter an order for the indorsement of that credit upon all executions, and that the judgment shall be satisfied upon payment of $1,532.80 of the principal of the judgment, and interest thereon, and costs to the date of the judgment, adjudging the costs of the motion against plaintiff; and if plaintiff shall not make such remittitur, then to vacate the judgment and grant the defendant leave to plead to the merits.

Reversed and remanded with directions.