Bennett v. Union Cent. Life Ins. Co.

• Decision Date: 16 June 1903
• Citation: 67 N.E. 971,203 Ill. 439
• Parties: BENNETT v. UNION CENT. LIFE INS. CO.
• Court: Illinois Supreme Court

203 Ill. 439

67 N.E. 971

BENNETT

v.UNION CENT. LIFE INS. CO.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by Rose B. Bennett against the Union Central Life Insurance Company. From a judgment of the Appellate Court affirming a judgment for defendant (104 Ill. App. 402), plaintiff appeals. Reversed.

Frederick A. Brown and C. W. Greenfield (Brown & Alling and James S. Wight, of counsel), for appellant.

James A. Fullenwider and John M. Hamilton, for appellee.

BOGGS, J.

The appellant brought an action of assumpsit in the circuit court of Cook county against the appellee company to recover on a policy of insurance issued by the appellee company June 29, 1898, on the life of Fernando W. Bennett, in the sum of $3,000, payable to the appellant, the wife of the assured. The appellee company pleaded the general issue and a special plea. It was averred in the special plea that the annual premium on said policy of insurance was $186.56; that the annual premium payment became due when the policy was issued, on June 30, 1898; that the assured did not pay the same, but executed his four promissory notes therefor, three of such notes being in the sum of $42.19 each and the other in the sum of $60; that one of said notes for $42.19 fell due September 30, 1898, and was payable to C. W. Sampson, soliciting agent of the appellee company; that the other two of said notes for $42.19 fell due, respectively, December 30, 1898, and March 30, 1899, and the $60 note fell due June 30, 1899, the latter described three notes being payable to the appellee company; that the note payable to Sampson was a promissory note in the ordinary form, the other three notes specifying they were given for the premium on the policy of insurance, and recited as follows: ‘Said policy, including all conditions herein for surrender or continuance as a paid-up policy, shall, without notice to any parties interested therein, be null and void on the failure to pay this note at maturity, with interest payable annually. In case this note is not paid at maturity, the full amount of premium shall be considered earned as premium during its currency, and the note payable without reviving the policy or any of its provisions.’ The plea averred the policy contained the following clause: ‘First. The failure to pay, if living, any of the first three annual premiums, or the failure to pay any notes or interest upon notes given to the company for any premium, on or before the days upon which they become due, shall avoid and nullify this policy, without action on the part of the company or notice to the insured or beneficiary; and all payments made upon this policy shall be deemed earned as premiums during its currency. Any and all notes, with their conditions, which may be given for premiums or loans upon the security of this policy, are hereby made a part of this contract of insurance.’ The plea further averred that the assured was living when the notes falling due September 30 and December 30, 1898, respectively, matured, and did not, nor did any one for him, pay either of said notes when the same became due or at any time thereafter, and that neither of said notes, nor any part of either of them, has been paid, and pleaded that said policy of insurance became null and void, under its terms, by reason of the nonpayment of said notes. The plea further averred that the note to fall due March 30, 1899, and that to fall due June 30, 1899, remained unpaid and were yet in the hands of the appellee company, and that no part of the first annual premium due upon the policy had been paid, and for that reason the appellee company was relieved of all liability to pay the insurance on the life of the said deceased.

The appellant added the similiter to the general issue, and by leave of the court, on the 22d day of October, 1900, filed replications to the special plea. Demurrers were presented to all of the replications, and were sustained as to all except Nos. 1 and 2. Replications Nos. 1 and 2 averred the notes which matured September 30 and December 30, 1898, had each been paid prior to the death of the deceased. On the 4th day of December, 1900, a number of additional replications were filed, but all were adjudged obnoxious to demurrer. On June 15, 1901, by leave of the court two additional replications were filed. The appellee company exhibited demurrers to these replications, and the court adjudged the demurrers to be well taken as to each replication. The transcript of the record as made by the clerk recites that the appellant excepted to the rulings of the court as to the sufficiency of the replications. The cause went to trial before the court and a jury on the issue made under the general issue and the special plea and replications Nos. 1 and 2. The appellant sought to introduce proof to establish the facts set up in the replications filed June 15, 1901, to which demurrer had been sustained, but the court refused to permit the evidence to be received, and directed the jury to return a verdict for the appellee company. In obedience to this direction a verdict for the company was returned and judgment was entered thereon. The Appellate Court for the First District affirmed the judgment, and the cause is before us by the further appeal of the appellant.

We may first consider the assignment that the court erred in sustaining the demurrer presented to the replication filed on June 15, 1901. The appellee company is in error in the contention that the appellant cannot be heard to urge that it was error to sustain the demurrer to said replication, for the reason, to quote from the brief in its behalf, ‘the well-established rule in this state is that where a demurrer is sustained to a pleading and the party against whom it is sustained elects to plead over, he thereby abandons the former pleading, and in the Appellate Court no question can be raised as to those abandoned pleadings, or as to whether demurrer was properly sustained to them or not. The only way to preserve such pleadings and demurrer for review by the Appellate Court is for the pleader to stand by the pleadings to which demurrer has been sustained. And this election must be shown in the record. It cannot be done by simply taking exception to the rulings of the court in sustaining the demurrers.’ It is the well-established rule in this court that, if a pleading is held insufficient on demurrer, the pleader must abide his pleading, or, as is sometimes said, must elect to stand by his plea, if he would have the correctness of the judgment pronounced on the demurrer reviewed in a superior court; but it is not requisite he shall orally or in writing advise the court that he abides his pleading or elects to stand thereon. If he asks leave to amend the pleading in order to obviate the defect pointed out by the demurrer, or asks leave to plead over, he thereby abandons his original pleading, and does not abide or ‘stand by’ it. If he takes no steps from which a waiver or abandonment of his pleading is to be presumed, he has abode or ‘stood by’ his pleading, and may be heard to urge in a court of review that his plea was good in law and that it was error to hold it insufficient on demurrer. If leave is given to plead over, and another plea is filed, and a demurrer is interposed and sustained to such latter plea, and no leave is asked or taken to amend or to plead further, or other steps taken indicating an abandonment, the decision of the court upon the demurrer remains an open question, to be considered upon error. That the parties proceeded to trial on the issues made by other pleadings in the case has no tendency to indicate that the pleading to which the demurrer was sustained had been abandoned. The appellant in the case at bar, after the demurrers thereto had been sustained, did not ask leave to amend the replication, or to reply over or anew, but went to trial on the issues formed by the pleading. He abode or ‘stood by’ his replication, and is free to urge in this court that the trial court erred in sustaining a demurrer thereto.

We find nothing in the cases cited by counsel for the appellee company at all inharmonious with the view here expressed. In each of such cases the pleader did not abide his pleading, but pleaded over, and for that reason was deemed to have waived the right to urge that the court erred in its ruling upon the demurrer. In ...