244 Ill. 202 | Ill. | 1910
delivered the opinion of the court:
This is an action brought by plaintiff in error, Mary Dillon, in the superior court of Cook county, against defendant in error, the National Council Knights and Ladies of Security, a fraternal beneficiary society, to recover upon a benefit.certificate issued by defendant in error to Hanora McCaffrey, a member of said society, and payable, upon her death in good standing in said order, to plaintiff in error. On a trial in the superior court the jury returned a verdict in favor of plaintiff in error for $1309.40, being the amount of the certificate and interest. Judgment being entered on this verdict, an appeal was taken to the Appellate Court, where the judgment was reversed with a finding of fact that “the court, upon the allegations and proofs in the record of this cause contained, doth find that Hanora McCaffrey failed to pay the February, 1900, assessment due on the certificate sued on and that such default continued until after her death, and the appellant herein, the National Council Knights and Ladies of Security, is not indebted to Mary Dillon, appellee.” From the finding and.judgment of the Appellate Court a writ of error was sued out of this court June 22, 1909.
This cause has been to this court before. (212 111. 320.) The facts are fully set out there and need not be repeated here in detail.
Hanora McCaffrey died March 16, 1900. The February and March assessments had not been paid at that date. The next day plaintiff in error, Mary Dillon, went to the home of Cornelius Ryan, the financial secretary of the subordinate council, and left the amount of these two assessments with a daughter of Mr. Ryan. On the former trial he testified that he did not recall whether he had sent to the grand lodge the money which had been paid him for the insured member after her death, while on this trial he testified that he did so send it. His testimony, however, on this point seems to be a conclusion that he drew from his records, and they are not very clear. It is urged that defendant in error by thus accepting this payment waived the requirements of the by-laws that it should be paid at an earlier date. In the by-laws of defendant in error it is provided that the certificate of a suspended member shall be forfeited upon failure to pay the assessment on or before a certain date, and that “no right under such certificate shall be restored until it has been duly re-instated by compliance by the member with the laws of the order with reference to re-instatement.” The by-laws further provide that “any beneficiary member suspended by reason of nonpayment of assessments may be re-instated upon the following conditions and none other, viz.: If living and in as good health as when suspended,” etc. This court decided in the former case that under the by-laws of defendant in error a suspended member could only be re-instated if living. The holding in that case on this point is sustained by Miller v. Union Central Life Ins. Co. 110 Ill. ■102, and Court of Honor v. Dinger, 221 id. 176.
It is insisted that Jones v. Knights of Honor, 236 Ill. 113, holds to the contrary. We think otherwise. In that case the by-laws of the organization did not contain the provisions here under consideration. In that case, also, the benefit society submitted to the jury, without objection, the question whether there had been a waiver of the requirement of prompt payment of the assessment for the beneficiary. Furthermore, we are disposed to hold that this question of waiver was settled adversely to plaintiff in error by the finding of fact by the Appellate Court. When that court has made a finding of fact this court can only look into the record to ascertain whether that court has properly applied the law to the facts so recited in its judgment. Scheevers v. Illinois Central Railroad Co. 235 Ill. 227; Kehoe v. Field & Co. 237 id. 470; Peterson v. Sears, Roebuck & Co. 242 id. 38.
It is, however, insisted by plaintiff in error that the finding of fact contains conclusions of law as well as of fact, and that such conclusions of law are not binding on this court. It is perhaps true that in finding the ultimate facts the Appellate Court was compelled to apply legal principles to reach its conclusions, thereby making the question to be decided a mixed one of law and fact. The findings of the Appellate Court of that character are conclusive in this court. (Roemheld v. City of Chicago, 231 Ill. 467; McGovney v. Melrose Park, 241. id. 142.) All other questions urged in the briefs are included in the finding of fact by the Appellate Court, and we are bound thereby.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.