Grand Lodge Locomotive Firemen v. Orrell

• Decision Date: 16 December 1903
• Citation: 206 Ill. 208,69 N.E. 68
• Parties: GRAND LODGE LOCOMOTIVE FIREMEN v. ORRELL.
• Court: Illinois Supreme Court

206 Ill. 208

69 N.E. 68

GRAND LODGE LOCOMOTIVE FIREMEN

v.ORRELL.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, Fourth District.

Action by Charles Orrell against the Grand Lodge of Locomotive Firemen. From a judgment of the Appellate Court, affirming a judgment for plaintiff (for opinion, see 97 Ill. App. 246), defendant appeals. Affirmed.

John H. Murphy and Jack, Irwin, Jack & Danforth, for appellant.

R. J. McElvain and R. J. Stephens, for appellee.

BOGGS, J.

The circuit court of Jackson county, on a trial before the court and a jury, awarded the appellee a judgment in the sum of $2,152.50 against the appellant lodge on a beneficiary certificate, and on appeal to the Appellate Court for the Fourth District the judgment was affirmed. The case comes into this court on a further appeal of the appellant lodge.

The assignment as for error that the Appellate Court erred in not reversing the judgment of the circuit court because that court erroneously admitted testimony in behalf of the appellee cannot be considered, for the reason such complaints were not persented for decision to the Appellate Court. It appears from the opinion of the Appellate Court that the record, as abstracted, did not show that any objections were offered in the trial court to the reception of this evidence, or that any ruling as to the admissibility of such evidence was asked of the trial judge or exception of any kind taken. The abstract, as prepared for the submission of the cause to this court, shows objections and exceptions to the introduction of the evidence; but counsel for the appellee, by leave of the court first had, filed a certified copy of the abstract on which the cause was submitted in the Appellate Court, and it fails to show that the appellant objected in the trial court to the evidence or that any exceptions were preserved. The transcript of the evidence found in the record is typewritten, and no objections or exceptions as to this evidence appear in typewriting. Objections and exceptions have been interlined with a lead pencil, but the abstract prepared for the submission of the case in the Appellate Court did not refer to any of the objectionsor exceptions now appearing in pencil writing. This appeal brings the action of the Appellate Court in review, and questions not presented to the Appellate Court are not before us for decision. Indiana Millers' Mutual Fire Ins. Co. v. People, 170 Ill. 474, 49 N. E. 364.

Many objections are urged against the instructions given to the jury. Those having reference to instruction No. 1, given at request of the appellee, in the greater degree arise from the effect of the word ‘not,’ which, as appears from the abstract, was used in a phrase of the instruction, ‘as is not here claimed.’ The instruction as abstracted appears in the record as originally certified, but counsel for the appellee procured an additional transcript to be filed in the Appellate Court, which additional transcript contains a corrected copy of the instruction, from which it appears the word actually used in the phrase of the instruction was ‘now,’ and that the word ‘not’ did not appear in the instruction, leaving the phrase to read, ‘as is now here claimed.’ Instruction No. 1 as given by the court is not abstracted, and therefore is not before us for review.

The beneficiary certificate sued on provided for the payment to appellee of the sum of $1,500 ‘in the event of his total disability.’ His suit was to recover for that cause. The right of the appellee to recover depended, in part, upon the meaning to be given the phrase, ‘totally and permanently incapacitated from performing manual labor,’ as employed in the following by-law of the appellate lodge:

‘Sec. 60. A beneficiary member in good standing who shall be totally and permanently incapacitated from performing manual labor shall be entitled to the full amount of his beneficiary certificate, provided that all claims arising under the provisions of this section shall be referred to the grand lodge officers, who shall make a personal investigation thereof, employing such physicians as in their judgment may be necessary to determine the validity of the same, all expense so incurred to be paid by the claimant unless assumed by the lodge of which he is a member.’

Instruction No. 9, given at the request of the appellee, was as follows: ‘The term ‘manual labor,’ in its ordinary and usual meaning and acceptation, means labor performed by and with the hands or hand, and it implies the ability for such sustained exercise and use of the hands or hand at labor as will enable a person thereby to earn or assist in earning a livelihood. Being able to temporarily use the hands or hand at and in some kind of labor, but without the ability to sustain such ordinary exercise and use of the hands at some useful labor whereby money may be earned to substantially assist in earning a livelihood at some kind of manual labor, does not constitute the ability to perform manual labor as it must be understood was contemplated by the parties to the indemnity contract sued upon and relied on in this action.'

The purpose of this instruction was to define the meaning of the words ‘manual labor,’ and to advise the jury as to the physicial condition which would constitute total incapacity to perform manual labor. Counsel for appellant lodge insist that the phrase ‘total incapacity’ means absolute...