139 Ill. App. 478 | Ill. App. Ct. | 1908
delivered the opinion of the court.
We are disposed to hold these pleas bad for duplicity. Each special plea seems to set up the following defenses: First, that the statement in the application that the insured was a laborer, when in fact he was a plow polisher, was a warranty and was a falsehood, and that because thereof the certificate never was valid; second, that the continuation of the insured in the employment of plow polisher after the issue of the certificate was a breach of the contract and invalidated the policy; and third, that the constitution and laws which went into force December 7, 1904, forbid plow polishers to be members and that as the insured had agreed to be bound by the laws subsequently enacted, he was bound by said enactment of December 7, 1904, and that, by continuing in the occupation of plow polisher after that date without filing a waiver as said new laws required, he broke his contract and the certificate then became void.
But we prefer to place our decision chiefly on other grounds. The statement by the insured that he was a laborer was true, for a plow polisher is also a laborer. The laws of the order in force when this certificate was issued, did not prohibit plow polishers from being members. This was not then a prohibited occupation. The occupations then prohibited by the laws of the order did not include any employment resembling that of plow polisher. The statement in the application that the applicant was not a plow polisher was not in the form of a question calling for a categorical answer or for any answer. The term “plow polisher” was included among a large number of other specified occupations, and the applicant’s only assent to the statement that he was not engaged in said occupations was by his signature at the end of the application. There is no averment that he wrote the words “plow polisher” or that his attention was called to these words further than is evidenced by the fact that he signed the application wherein that statement is contained. If the order desired to know more fully what kind of labor he did, it could have asked him to specify more fully at what kind of labor he was employed. This it did not do. It is not reasonable to suppose that the insured, while engaged in the occupation of plow polisher, took this certificate and thereafter paid dues and assessments thereunder for the rest of his life, with a knowledge that he had stated in his application that he was not a plow polisher, and that by reason of the contents of the application he had signed, the certificate was void from its issue, and that he forfeited to the order all dues and assessments paid thereon, and that said certificate and such payments would not in any way benefit either himself or his wife. We think this case is within the reasoning of Minnesota Mutual Life Ins. Co. v. Link, 230 Ill., 273, and that the statement in question was a mere representation.
This certificate was issued December 19, 1899. As already stated the laws of the order did not then prohibit plow polishers from becoming members. The averments of the declaration that the insured paid all dues and assessments from the issuing of the certificate to the date of his death are not controverted, and indeed the proofs at the hearing, not abstracted, show that the supreme recorder of the order stated to appellee’s attorney that the proofs of death were in proper form and properly filed, and that the insured was in good standing at the time of his death, and that the only ground for refusing payment of the certificate was that the insured had been in a prohibited occupation. Plow polishers were first placed in the prohibited list on December 7, 1904. The insured agreed to be bound by the laws of the order enacted after the issue of his certificate. If therefore it had afterwards passed a law providing that persons already members who should thereafter be engaged in certain occupations should forfeit their certificates, that would have bound the insured, if it was a valid law, of which we have grave doubts. But the new laws of this order, which went into force on December 7, 1904, so far as they are set up in the second plea, are not retroactive in their language. Section 106, entitled “Who may be admitted,” reads “Persons to become benefit members of this society must be * * * not engaged in any of the prohibited occupations hereinafter mentioned, or in any other hazardous occupation.” Section 107 of said new laws, entitled “Prohibited occupations,” reads, “Persons engaged in the following occcupations, or who shall engage therein occasionally for hire or otherwise, shall not be admitted to benefit membership in this society,” and this is followed by an enumeration of occupations which includes many not theretofore prohibited, and among them “plow polishers.” The words “shall not be admitted” are wholly prospective. Their natural meaning applies to the future only. There is no language in the new laws set out in the plea which would naturally apply to those who were already members of the order and who were engaged in occupations then for the first time prohibited. It is reasonable to suppose that if the order had intended that the prohibition of certain additional occupations should apply to those already members of the order, some words would have been used which would plainly give it a retrospective operation, and that some reasonable time would have been given old members engaged in occupations then newly prohibited in which to change their employments. Ko language of that kind is found in the new laws as pleaded. The general principle governing the construction of such laws of a beneficiary society is that they are prospective only in their operation, and relate only to contracts thereafter made, unless the intention to give the law retrospective operation and to apply it to existing certificates and contracts clearly appears, and that intention we assume must clearly appear from the new laws themselves. This rule of construction is laid down in Kaemmerer v. Kaemmerer, 231 Ill., 154; Moore v. Guaranty Fund Life Society, 178 Ill., 202; Voigt v. Kersten, 164 Ill., 314; and Benton v. Brotherhood of Railroad Brakemen, 146 Ill., 570. Under this rule of construction, the new law prohibiting the occupation of “plow polisher” was not intended to and did not apply to this prior beneficiary certificate and did not invalidate it. The plea therefore does not state a defense to the action.
The second plea is bad for another reason. It professes to answer the whole declaration and prays judgment in bar of the action, yet it contains no answer to the common counts, which were filed long before the pleas were filed, nor does it allege that plaintiff’s sole and only cause of action is upon the beneficiary certificate set forth in the first count of the declaration.
The other special pleas were equally defective. The demurrer was properly sustained.
It is urged that interest could not be recovered because the special count of the declaration did not declare for interest. Where interest is claimed by virtue of an express contract to pay for interest, no doubt the declaration should count upon the agreement to pay interest, but where interest is payable by virtue of the statute, and not by virtue of the contract we think it is not necessary to specify the interest in the declaration. Grand Lodge A. O. U. W. v. Bagley, 164 Ill., 340. Section 2 of the statute relating to interest allows interest at 5 per cent per annum for all moneys after they become due on any instrument in writing. This certificate was an instrument in writing, and the money was due before this suit was begun. The suit was started on September 5, 1905. Through an excess of caution, appellee only asked for and computed interest on the principal at 5 per cent per annum from October 1, 1905_, a date later than the date- of the commencement of this suit. Appellant’s brief states that the ad damnum in the declaration was $2,000, and its abstract of the declaration makes it so appear, but an inspection of the record shows that both the praecipe for summons, and the ad damnum in the declaration, laid the damages at $4,000.
The judgment is affirmed.
Affirmed.