*1 Finkle, Respondent, v. The Western Automo Rose Garnisher, Company, Scott, Kansas, bile Fort Insurance Garnishee Joseph Harry Gruverman, Copartners, do Gruverman Style Joseph ing Firm Name Business Under Appellant.* S. (2d) 26 W. 843. & Son Bakery, Gruverman Opinion April 8, Appeals. 1930. filed Court of Louis St. *2 * Juris-Cyc. Corpus Appeal Error, References: 4CJ, 3013, p. section 30; 1029, Courts, 15CJ, 512, p. n. 69; 1083, section Garnishment, n. 28CJ, 468, p. 310, 50; Insurance, 32CJ, section n. 265, p. 1152, 95; section Judg n.
ments, 34CJ, 6; p. 1031, Liability section n. Insurance, 36CJ, section 40; 104, p. 1113, Trial, 38Cyc, p. 1486, n. 66. n.
Ourlec, Nortoni <& appellant. Teasdale for *3 O’Donohoe for James J. Foristel, Mtodd, <& Blair Haibenicht respondent.
BENNICK, garnishment proceeding of an C. This is in aid city of St. execution issued clerk circuit court of the court pursuant rendered said Louis, theretofore *6 amounting' $5000, for with costs in favor Finkle $32.75, of Rose against Harry Gruverman, plaintiff, Joseph and Gruverman and doing style co-partners, under the firm Joseph business name of Bakery, & Son judgment Gruverman as defendants. Such was damages personal injuries an action for rendered sustained by plaintiff by operated struck the when an automobile owned and by coverage liability defendants, policy and included in the of a garnishee by insurance issued herein theretofore the to them. question policy in “in provided consideration the
premium forth, and of the hereinafter set schedule of statements garnishee hereby forming part hereof,” “does as insure the against liability by . . imposed sured . loss fiom the law by assured, ownership, any reason of the maintenance or use of of the automobiles hereinafter described.” agreement garnishee part of
Then followed an on the to de- any brought behalf fend in name on assured suit against by policy; to enforce a claim the assured covered defense; pay such and to expenses all incurred in reimburse as- surgical any expense incurred for such immediate relief sured imperative time of the accident. as was at the provisions consequence which are of no on
Certain other this incorporated after which appeal policy, were next came the subject provision to certain the insurance conditions among was the thereafter, which condition that the as- enumerated give company any immediate written notice of sured should by policy, and like notice of claim any covered or suit accident every resulting together therefrom, process summons or other therein. served provision C, policy condition which is the
Then followed reading appeal, as follows: directly involved on this requested by company, the assured shall aid in “Whenever securing effecting settlement, evidence wit- attendance of co-operate company in shall with the all matters nesses, and necessary any in the defense of deems or in the suit any appeal.” prosecution of by argument made counsel in the course of their
Reference is also insurance should I), pay- which was that the be due and condition when claim or assured the amount loss covered able to the policy certain, have been fixed and rendered should either by agreement assured, or final between the company. the written consent parties with injuries received on December 22, 1925, Plaintiff’s were and on 17, petition principal filed her action. she Sum- March upon defendants, and served due mons was issued course assignment upon the docket of the appeared division of the cause April 18, ei' court for 1927. Messrs. & lit Meanwhile Wood ; employed action, had been Teasda defend *7 having April 20, 1927, but on the case not been reached on the they attorneys up withdrew as time, docket to that for the defend- noncompliance by upon ground ants of the latter with condi- following April judg- on policy, day, C and 21, 1927, tion ment was taken defendants default. damage
The evidence for the was that re- suit was Teasdale, shortly attorney, petition its ferred it to after the was deposition 1926. March, thereafter, Some little time a filed was attorneys, whereupon requested plaintiff’s Teasdale de- called going purpose his office for to come to of over the en- fendants On that occasion he told them of case. their duties under the tire they expected that -would both policy, advised them be testify, and ITarry Gruverman, who defendant had been driver and that of principal for would be the witness truck, defense. engaged bakery time defendants were in the business, that At avenue, city Louis, 1415 North Jefferson of St. at and it would garnishee. was known appear other address ever that no meeting had with the next Teasdale Gruvermans was in forepart June, 1926, prepared when he a letter of for them to the having Secretary State, to do with the an transfer of automobile conversation, Harry In the course defendant Gruver- license. bakery bad, Teasdale that the business was man informed that and thinking giving up, whereupon he and his father were Teas- again impress prompted upon necessity once them dale felt holding suggestion available for the trial. themselves To the city, Harry should leave the defendant re- that he Gruverman going you dirty I to do no trick plied, that, ain’t like Mr. “Oh, ’’ Teasdale. again part month, latter of the same defendants upon In the called express they no Teasdale, or at other time did to him but then their leaving city damage before the trial of suit. intention April 5, 1927, approximately damage On two weeks before the trial, 'Teasdale wrote defendants at the North suit was set Jef- advising setting them of the address, case, ferson avenue him arrangements with once so asking communicate at them to that the defense of the same. might made about Some three or four days letter was returned to Teasdale undelivered, later this where- investigator Moll neigh- out an named to canvass the upon he sent defendants. to locate borhood an effort defendants, or to find one Moll unable who knew of was their whereabouts, gossip neighborhood he did hear that unpaid leaving away, a number of bills behind had moved them. registration department Teasdale wrote' the automobile then files, might be obtain whatever information contained February department ascertained the last record of such was of was made. 9, 1927, when a of title defendants’ automobile transfer investigation upon In of Moll’s one the course had come suggested employee Kramer, a former who defendants, had friendly street, E. Bierman, Biddle terms on had might with defendants, know their address. Teasdale there- Bierman, sent letter addressed to defendants care of “please letter un- notation, forward,” but this also returned delivered. April 1927, upon counsel, he
On Teasdale’s withdrawal as defendants their address, mailed another letter to at last known ad- vising withdrawal, in the them of same mail his he sent a similar care Bierman, letter to them in both of which un- were returned *8 personally, requesting A letter was Bierman delivered. also sent to entry of judgment, him of the the default to advise defendants returned, this was not went while letter unanswered. days hearing garnish- a December, 1928,
In few before the of the employed by case, private ment detectives were Teasdale to hunt defendants, report their for the disclosed that had been gone city years. from for the about two examination,
In course of Kramer’s it was the shown that de- although gone York, had to New' fendants did know not their testified, however, street address. He that defendant Joseph Gruver- from, union, man carried a card the bakers’ and that his address from the headquarters could be obtained international the union in Chicago. gist stated, controversy
As has been heretofore the between up by parties, pleadings, regard made the in the as to the ef- policy, requiring to condition C of the be ascribed fect the as- cooperate company in all sured to the matters which it deemed necessary any in defense suit. the resulting a in jury,
The case was tried to the return aof verdict plaintiff, and garnishee, finding in favor of the that the garnishee in sum was indebted to defendants the of $5032.75, with per per the rate of six cent April interest thereon at annum from thereupon garnishee was 21, 1927. The pay into ordered the days total $5546.08,being court wdthin ten sum of registry of the the jury owing the indebtedness found full to be amount discharged. defendants, upon which it should stand This order was whereupon final uncomplied with, was entered, from which duly appealed this garnishee court. has is court, The chief insistence that at given evidence, requested should have its all the peremptory close of favor, upon theory in that its own instruction for a verdict its substantially documentary evidence, com- case, which was based on prima-facie con- case, in it showed pletely plaintiff’s that rebutted clusively coopera- C, the defendants of condition a violation policy. argues support point in that clause, tion It requiring cooperation by policy in the condition an insurance vital; assured is of it the in- valid and breach exonerates policy assured, or liability surance from to the on standing assured; and that party in shoes of the third in plaintiff’s prima-facie when the case is evidence rebutted completely over- part writing, undisputed, which is prima-facie destroys made, the de- comes and case theretofore is an favor. fendant entitled to instructed verdict argues contrary provided is Plaintiff that no forfeiture policy question on of the assured’s failure account co- forfeitures, operation, inasmuch courts do not favor and that as only garnishee’s forfeitures, work was the supply never words to request properly denied, peremptory for a instruction fact given. peremptory requested own instruction should have been her undoubtedly true, garnishee insist, is for the It counsel requirement liability policy cooperation on insurance for enforceable, part and no case has of the assured valid and been holding contrary. by opposing cited counsel While it would necessity appear construction of such a clause has that the yet may in this at least one State, but seldom arisen case found provision (Mears Mining Mary- upheld such has Co. v. where Casualty though 162 Mo. Co., App. 883), land S. W. *9 controversy utterly point therein dissimilar to that bar. at obligations arising contract, from the Aside from the law of it apparent policy requiring once that a of a the is at condition co operation of assured in the of and assistance the defense the action brought by is against injured party importance him the of the utmost practical sense, presence assured, a for without the the and his preparation trial, in the case for the insurance is the aid point greatly cooperation even to such lack of handicapped, the may making incapable Consequently result in the action of defense. to as we know of no dissent view that between assured and the company, the com the insurance unexcused failure of the assured to requiring policy cooperation ply with the condition of the serves to recovery policy of prevent judgment, under the his amount Fidelity paid by Jersey & if him. v. New Plate Glass [Schoenfeld 796, 606; App. 203 197 N. Y. Co., Insurance Div. S. Coleman v. Casualty Rep. 380, 126 Misc. 213 N. Y. Co., New S. Amsterdam Fidelity Guaranty 148 522; & Co. Williams, States v. Md. United 129 289, Atl. 660.]
295
In
words,
other
nothing
situation calls for
ap-
more than the
plication of the familiar rule
indemnitee,
to
order
entitled to recover on his indemnity
fully
contract,
perform
must
all
by
conditions which
the terms of the contract are made conditions
precedent
any liability
part
on the
[Riggs
the indemnitor.
v.
Jersey Fidelity
New
& Plate Glass Insurance
Co.,
404,
Ore.
Nor is any there doubt about the contention of plain counsel for tiff that courts abhor forfeitures, and refuse to read such a drastic provision policy into a parties of insurance when the have themselves unmistakably not inserted it therein. In such an this, instance as however, we do policy not undez’stand that fozffeiture of is If enough involved. is escape the insurer fortunate liability, is necessaz’ilyby not policy, policy may a forfeiture of the for the well by remain in full effect force and as those losses sustained policy met, assured where the conditions of the recovery may have been a while particular be defeated as a loss in connection with obligations perfoz’inance was remiss of his the assured under contract. requiring co- policy condition
By we mean that this precedent a is in nature of condition assured operation growing a claim part loss out of company’s for the liability on the demanded; assistance is disposition which the assured’s such con- a breach of why should hold that we reasozz we see no nullifying and given have effect instance should in a dition vitiating words, In other purposes. time and for all the contract evi- securing information and to aid of the assured the failure com- company will not terminate requested when dence expressly law, policy liability a matter of entire pany’s forfeiture, an action a cause making failure such sustained, his particular loss indemnity to cover assured question of company on the vital for the be evidence will failure contract as to serve of his a breach of such guilty he was whether liability there- company from to relieve action, and his defeat 51 Atl. 262, 71 N. H. Casualty Co., Maryland 900.] v. in. [Ward requiring the as- policy within a “cooperation” What constitutes of an action in the defense insurer with the cooperate sured v. New fact. question of usually [Coleman him, brought Casualty Insurance Metropolitan Casualty Co., supra; Amsterdam 121 So. Ala. Blue, 25.] York v. of New Co. *10 company’s to re- to accede every failure Obviously is not it rights defeating the of the effect will have quest for assistance Generally speaking, to constitute policy. his under assured of the contract, there must provision cooperation of the a breach in some material and sub- assured cooperation by lack be a 296 lack respect, any formal, inconsequential, and or collusive
stanfial [George Liability cooperation Employers’ will be immaterial. v. Corporation 175; Conroy 122 So. v. Commercial (Ala.), Assurance Riggs Casualty 219, 905; 292 Atl. New Insurance Pa. 140 v. Co., Jersey Fidelity Co., & supra.] Plate Insurance Glass
For the refusal of in assert instance, while the assured to assist liability (Collins’ from ing company defense will valid excuse Ky. 170 185 W. 27, Ex’rs. v. Accident Insurance S. Co., Standard yet improperly 112), cooperation demanded, if is as where he his asserting defense, cooperate a sham his asked aid failure to to obligation company policy. from its will not under the release Casualty what Co., supra.] Likewise, New Amsterdam v. [Coleman cooperation appear blush to be a breach clause would at first developes if may excused, that the failure of the assured was was no exercise of faith on his mistake, and that there due bad Co., v. Pacific 73 Wash. Casualty Motor Co. Coast part. [Taxicab 393; Casualty Conroy Co., 132 v. Pac. Commercial Insurance 631, Indemnity 649, Insurance 142 Atl. supra; Co., v. Conn. Guerin 268.] hand, where the insurer is unable to make a however,
On the other expectation presentation thereof, a fair without defense, with cooperation assured, legal a lack of cooperation of without respect needed, collusion, or some material when excuse good insurer, will be a defense to an action not waived Casualty [Metropolitan contract. Insurance Co. on his assured Blue, supra.] York v. New light reported cases, such a material
Considered policy frequently evinced, is most condition breach give company of the assured to whatever refusal either claim, respecting which has has been filed he information Casualty supra; (Coleman Co., v. New Amsterdam Collins’ him Co., supra; Metropolitan v. Standard Accident Insurance Ex’rs. supra; Conroy Casualty Blue, New York v. Com Co. of v. Insurance Casualty supra); willfully or where misin Co., Insurance he mercial concerning facts, or essential colludes with the forms the company by refusing attempt testi to defraud an plaintiff 100, v. Bassi, facts of the accident. Minn. fy [Bassi the real Co., 947; Indemnity N. Rohlf v. American Mutual 205 W. Great 161 N. E. and cases App. 208, supra.] 27 Ohio long eity[ they so were in bar, case defend- Now in the at fully very garnishee, cooperated have seem to ants every request for assistance counsel made. have acceded expressed willingly office when a desire to Teasdale’s They came them; they presented whole with themselves case as a go over the depositions, if were response the notice to take
297 own; through Teasdale, it was no fault of their cross-examined gave setting they signed him forth their of statements version about. how had come There is a the accident hint that single willfully fact, misinformed Teasdale as a ever to nor is there plaintiff. pretense a collusion between them and of the question case, is only therefore, whether act in in the their notifying company city thereof, the and with- leaving the without advising C address, new was a breach condition out it to their escape liability the to so as to enable for the policy, loss thereunder. sustained found books cases are to be in where there was
A number of the precise question of was a presented the whether it to court to cooperation for assured clause leave the state breach of the day Some have one way, of trial. decided and some before the peculiar instance depending in each state facts another, court. before the principle merely that it must be borne in mind it is basic
As a assured right cooperation which the com assistance to express provision is no policy, and that there pany has under requires place assured come to the which trial. therein Indemnity Co., By Mutual supra.] v. Great American this [Rohlf saying understood as that intend the assured we do not attending staying away or of option either of every instance has his impractical be a unfair and would most trial, such from Certainly presence put upon the contract. construction testimony own trial, where his is vital to himself at the the assured company may matter which would deem defense, well be a suit; hand, necessary but on adequate defense the other merely as said as matter law because the it cannot be a that has breached his contract trial, before leaves State sured respect liability so as avoid insurer’s under the in material a Liability [George Employers’ Corporation, Assurance policy. v. Casualty Rushing App. v. Insurance supra; Co., Commercial 232 N. Y. S. Div. 255.] situation, appears there are that two ultimate such Under First, guilty whether the questions be determined: assured was second, leaving; whether and, exercised cf faith bad ascertaining whereabouts, diligence his pro- reasonable deposition or trial, his curing attendance at use lieu his appearance. personal of a ease an exceptionally can doubt that this be no
While there peremptory instruction for conclusion is that either one, our close improper. one hand have been On the have the party would we city, apparently from departure the Gruvermans some two given no trial, set for the ease was notice before months company, either of their intention leave, or of the new address they expected though hearsay to have. There evidence, they departed leaving character, unpaid a number of bills be- might them, undoubtedly'have hind from the inference *12 purpose drawn obligations outstanding their that was to avoid their city They given in previously St. Louis. had Teasdale their cooperate assurance they every that would particular, and their subsequent though conclusively, conduct would fairly, not warrant prompted solely by the belief their sudden exodus was that bad faith. just hand, however, legitimate
On the other it is to infer that they prospects left search of a where their location business would better, be their failure to have notified of their that Teasdale going ignorance, inadvertence, was due to or mistake, and not to Certainly faith and bad motives. does it not conclusive- fraudulent ly appear they attempt made that to secrete themselves their they stated, willingly new home. As we have heretofore had cheerfully every request complied with which Teasdale had made upon them; they did not know when the case would be called for trial; given setting long and in fact not until they was after it had city. left the beyond question this, open
But we think it is an as to whether the garnishee diligence securing used due toward their attendance at June, 1926, April, eoncededly From until court. Teasdale get although them, made no effort to touch with from his own testimony he would have us he believe that was fearful of their cooperation while, lack of all the and had even been told one of might they given move. had opportunity them He been an that to interrogate oath, passed ground under them but had it on the days policy. waited until trial He thirteen before case was to they whether city. be called trial to determine were still in the investigation persona] No was made until less than a week before day nothing trial. "When could be learned as to their neighborhood from their associates in the they whereabouts where send his letters lived, had he continued to to the address where he longer they found, were no be and to Bierman, knew whom he nothing been advised knew of their whereabouts. had As a matter is the evidence for the of fact there room belief that at the time sending his last series of letters to their old address, he w7as he either chargeable they gone knowledge, was with knew, or that had to the might East, known, not, they he have if and indeed that he did York. city attempt New He no were located made locate through says through union, bakers’ them Kramer eighteen months might found, judg- been until after have the default go against them, pursue was and then did allowed ment his inquiry point might successful, where it reasonably have been sought lie no continuance from the court, but very at the first setting of the case arranged plaintiff’s counsel for his own withdrawal, and for taking of a judgment against default his nominal clients. reported Of all the cases that find, we have able the one perhaps most v. favorable to the New Schoenfeld Jersey Fidelity supra. & Plate Glass Co., Insurance the as- There country leaving sured had left this no Russia, address where might with, communicated when the was unable him, case, from locate withdrew allowed go against him is significant, however, default. It company withdrew from the defense two months before the de- attempts taken, and that to locate the assured had oc- fault long period Even prior such a curred over of time thereto. question good company’s state facts the held that the court jury determine; question jury was a for the and if there faith was *13 present case, pointed more issue in how much is the the Schoenfeld put forth no active efforts bar, in the case where the at day was case set two weeks before the the to locate defendants until day until second thereafter. trial, and did withdraw the not facts, and law the repeat, therefore, in our view of the We that jury pass upon, from which for the to was a clear-cut issue there garnishee’s request directed verdict at the for a it the follows that properly denied. was of all the evidence close argument plaintiff’s to the of counsel During course of the the which interposed to statements objections of were number jury, a garnishee in good of the seek- faith the the to issue of directed were alleged de- liability failure of the of the ing account avoid on to of original portion The action. cooperated in the have fendants to printed pages the ab- argument some five referred to covers the pur- no serve useful full herein would it stract., to set cut and improper, no doubt objected were to of statements pose. Some the argument. subjects It is legitimate w'ere while others firmly pointedly each and on ruled judge that he trial credit repudiate argument quick the bad every objection, to was as and and no good. circumstances we see Under such uphold as was to the he any interference at our to warrant his discretion so as abuse hands. No. 2, instruction complains of garnishee point its next the For plain they found for jury if that the given plaintiff, told garnishee that they found the if and garnishee, the tiff and plaintiff the sum of they should allow defendants, indebted to was rep $32.75, sum of further together with the interest, $5000, jury were directed objection that the is The resenting court costs.
to plaintiff allow' the sum find $5000 rather than to that costs, garnishee was in that amount. indebted to the defendants erroneous,, technically
There is no the instruction was doubt that technically er- plaintiff it was counsel for concede. so That saying prejudicial roneous, however, is contained far from that it require very jury error. properly It did find that garnishee indebted, If was thus was indebted it defendants. part there the measure of its upon wras no contention its that but obligation $5000, Consequently sum we was and the costs. garnishee anywise cannot that harmed believe was language instruction, counsel’s contention to unfortunate contrary be disallowed. must point argues garnishee' For court erred its last that given by refusing signed plaintiff’s to admit evidence statement physician, plaintiff own w'hich was had claims effect that it seriously position not is such statement hurt. Its here damage properly tending resulting to it show admissible as cooperate. from the assureds’ failure to protect general bound to another The rule is that where one is litigation liability, from which the bound the result of op- party, provided litigation, and an other is a he had notice of the manage it; portunity rendered to control and indemnity subsequent therein is conclusive in action questions necessarily all and issues determined contract as to there7 in. only op action, had and an
Here the notice manage policy, which was portunity it, under its control' and indemnity duty contract, was defend the more than a mere assureds, claim con name behalf as a action and on y only liability was on policy. cededl covered denial *14 ground had of the the that the assureds breached the condition requiring cooperation question on part, their and such the policy on garnishee standing liability in shoes defend of to one the of the the policy, If their was depend. ants assureds breached there must the judg liability garnishee’s part no of the on the account damage they suit, it, if did not breach then the in and ment the necessarily judgment garnishee by all issues is concluded the as to' as therein, must the issue the extent include determined Consequently injuries. that the statement of plaintiff’s we rule of objection legitimate place case, and that the no the the doctor had [Carthage properly sustained. was evidence admission 186 Mo. 172 App. 332, Co.,. v. The Traveler’s Insurance Stove Co. 203 W. W. S. 537, S. aff. Mo. 822.] appellant a motion of case has been taken Along with the there presence of reason the Supreme Court, cause to the transfer the case the of alleged various questions constitutional which were first raised in reply plaintiff’s denial of garnishee’s answer. if Even questions the constitutional timely were prop- erly raised, they preserved were not in the motion for a trial, new present and hence the motion should be overruled. points arising other No decision, judgment it follows that the rendered the circuit court should affirmed, and the Commis- sioner so recommends. PER foregoing opinion CURIAM:—The of C., adopted Bbnnick, opinion of the court. appellant The motion of to transfer the Supreme
cause to the overruled; Court is and the court is, P. Haid, J., circuit affirmed. accordingly, Becker Nipper, JJ., concur. Rehearing.
On BENNICK, rehearing C. A motion for has filed learned they counsel for question propriety in which of opinion approved principal respects: First, our that have two we part prejudicial argument plaintiff’s jury on the certain objection ruling counsel, and erroneous lower court thereto; second, and misstated and, that have misconceived we Joseph particularly in or not defendant evidence, respect whether ’ he de carrying bakers union when a card from the Gruverman was East. in the parted Louis for from St. his destination have now argument plaintiff’s counsel complaints about the The which was improper remarks, one alleged down two simmered found, and the could be Gruvermans Teasdale knew that that might have case when from the other, he had withdrawn that defendants; that continuance, have found for a asked looking clients; and he was only that his nominal were defendants client, company, with insurance actual of his interests after ruling way. that design getting claim in rid of the merely let the state he would judge in each instance trial remark, objection to the last stand, though disposing ment liberty be at suggestion would Teasdale venture the he did argument. answer only position that the take garnishee not Now counsel for the along claim what adversary, argument considered of their worked should have judge, trial given by the approval was the holding otherwise, we judgment, also that reversal controlling in *15 laid down heretofore departed the rules from have subject ap- upon Court Supreme this decisions of objections ruling to pellate on with of a trial interference court alleged argument improper of counsel. guilty of no opinion was principal
In our we said the court judicial quick repudiate the indiscretion, was as to inasmuch as it good; a full con- argument uphold it was and after bad as to rehearing, we are still of sideration counsel’s motion thought. plain- remarks of words, In we consider the same other scrutiny having been as directed tiff’s counsel which are now under legitimate comment, subject to answer matter of to a fair and character, argument garnishee like kind and counsel for in lower held. court prime pleadings, evidence, and in point the case under the argument have instructions, which to all the seems one to dili- had used reasonable directed, was whether the gence Gruvermans, and whether to ascertain the whereabouts of go to liability, had disclaimed and allowed default it Obviously plaintiff’s good the remarks them, in faith. very pro- issue, he entitled in a had do and was counsel to this though language may ceeding his have been character, of this even question opponent’s efforts, extravagant, minimize somewhat to his jury identity point and interest diligence, and out his damage equally suit, opponent with his employer his real reply identical matter. entitled to address himself to judge significance trial took no sides is also of learned It that the which, nothing anywise matter, and said was calculated simply personal approval argument, ef- lend his held question argument open case, an fect that was directed to liberty discuss, jury as parties both were and which the at finally determine for called the arbiters of fact would misconception ruling, law in such a We see no themselves. hence to adhere to the view heretofore ex- are constrained pressed that error not committed. charge support evidence in
As to the that we have misstated the Joseph a union plaintiff’s point Gruverman had defendant quote testimony of Louis, simply when St. from the card he left we garnishee’s witness, Kramer, own as follows:
“Q. A. Joe Gruverman was father? Yes. belong your (Q).
“Mr. 0’Donohoe: union? Did Joe Gruverman belong. did A. He
“Q. belong you say he New up Did time went to A. York? to withdraw from the union. He had
308 When, “Q. get did the older one his withdrawal card? A. As soon he started business. The week he started in business first got he his withdrawal card. All do. the bosses
“Q. Anybody All A. the bosses? start business, the union carry allow them a full card. wouldn’t
“Q. they carry any Will Withdrawing allow card? A. them to card. “Q. you A. It $2.10 do mean costs full What that? to be a member; it costs half dollar to a half member.
“Q. belong Which did he to? A. Union No. one 4. “Q. belonged Was he in the cent class or the other? He on, class later when he became boss. cent “Q. Was he a 50 cent class member when he left St. Louis? A. Yes, sir.
“Q. get Did he then a withdrawal card from the union? A. He withdrawing get full belong has to card to to the union in New York—in State.
“Q. belong What does in New union York—what branch? forget got A. I They that. I cannot tell. different over locals there.
“Q. you say Would the locals would or "would know what belongs They may to in New York? A. local he know at head- quarters.
“Q. headquarters know it? A. would Yes. (Q) go lodge : here, You didn’t to the head or “Mr. O’Donoiioe order, head members of and ascertain union he in in what you They A. in Chicago, New York? tell. Tell to find out wouldn’t headquarters. “Q. They you "wherehe was? A. The "wouldn't tell International Chicago you. gets with- know here. will tell He don’t He go.” him let drawal card and
Accordingly, Commissioner recommends that the motion rehearing be overruled. opinion foregoing Bennick, C.,
PER CURIAM:—The opinion Appellant’s court. motion for rehear- adopted as ing J., Nipper, Becker and Haid, P. accordingly, overruled. is, JJ., concur.