Bradley v. Fed. Life Ins. Co., 13421.

• Decision Date: 21 December 1920
• Docket Number: No. 13421.,13421.
• Parties: BRADLEY v. FEDERAL LIFE INS. CO.
• Court: Illinois Supreme Court

295 Ill. 381

129 N.E. 171

BRADLEY

v.FEDERAL LIFE INS. CO.

No. 13421.

Supreme Court of Illinois.

Dec. 21, 1920.

Error to Appellate Court, Fourth District, on appeal from Circuit Court, Jackson County; William N. Butler, Judge.

Action by Loyd Bradley, as administrator of the estate of W. H. Fraley, deceased, against the Federal Life Insurance Company. Judgment for plaintiff was reversed by the Appellate Court for the Fourth District (216 Ill. App. 602), without remanding the cause, and plaintiff brings certiorari.

Judgment of Appellate Court affirmed.

Charles E. Feirich, of Carbondale, and Otis F. Glenn, of Murphysboro (Loyd Bradley and Lawrence A. Glenn, both of Murphysboro, of counsel), for plaintiff in error.

C. A. Atkinson, of Chicago, and John M. Herbert and L. R. Stewart, both of Murphysboro, for defendant in error.

FARMER, J.

This suit was an action on the case, begun in the circuit court of Jackson county by plaintiff, Loyd Bradley, as administrator of the estate of W. H. Fraley, deceased, against the defendant, the Federal Life Insurance Company. The declaration consisted of two counts. The cause of action alleged in the first count is that defendant, a corporation, is engaged in the business of insuring persons against accidental injuries and death resulting from such injuries, and employs agents to solicit and receive applications; that on May 2, 1917, F. G. Farnham, a duly authorized agent, solicited Fraley to make application for an accident policy with defendant; that Fraley did on said day make application for an accident insurance policy in the defendant company; that he signed and executed said application as directed by defendant's agent, Farnham, and paid the first payment, $7, which was the amount necessary to keep the policy in force 3 months from its date; that the application was for an accident insurance policy insuring Fraley in the sum of $5,000 against death from accidental injuries; that the amount to be paid in case of Fraley's death from accidental injuries was $5,000; that at the time the application was made Fraley was 46 years old, in good health, and a desirable and acceptable risk; that if the application and first payment had been forwarded to defendant's head office, in Chicago, within a reasonable time by its agent, a policy would have been issued to Fraley insuring him, which would have been in full force and effect at the time of his accidental injury and death; that it was the duty of defendant's agent to Fraley and his estate to promptly forward the application and first payment to defendant's head office, in Chicago, which was distant 308 miles from Carbondale, Ill., where the application was made and the premium paid, but that said agent neglected and failed to forward the application and payment to defendant's home office, as a result whereof no policy was ever issued to Fraley; that while walking along the right of way of the Illinois Central Railroad Company in the city of Carbondale, Fraley accidentally slipped and fell under a moving passenger train and received such injuries that he died June 29, 1917; that his injuries and death were effected solely, directly, and independently of all other causes, through external, violent, and purely accidental means, and were such injuries as would have been insured against in and by said policy so applied for by Fraley, and upon which he had made the first payment, had the same been forwarded to him by defendant, as was its duty to do. The second count alleges the same facts, and charges that defendant negligently failed to act upon the application within a reasonable time and either issue a policy or reject the application in sufficient time to enable Fraley to procure other accident insurance.

Defendant filed a general demurrer to the declaration, which was overruled, and it then filed pleas-the general issue and two special pleas. The first special plea was a plea of the tender of $7. The second special plea set out the receipt given by defendant's agent to Fraley, acknowledging the receipt of the application and the first payment of $7 to keep the policy in force three months and agreeing to return to Fraley said payment if defendant declined to issue the policy within ten days. The receipt contained this sentence:

‘Applicants will please notify the company at Chicago, Ill., should the policy not be received within 10 days from date hereof.’

The plea then averred that Fraley negligently failed to notify defendant within 10 days that he had not received the policy, and further averred that had Fraley so notified defendant it would have notified him within a reasonable time of the acceptance or rejection of his application.

Demurrers were sustained to both special pleas, and the cause was heard and submitted to the jury on the declaration and plea of general issue. A motion by defendant to direct a verdict in its favor was overruled, and the jury returned a verdict for plaintiff for $5,000. Defendant entered a motion, after verdict, to dismiss the suit for want of jurisdiction, which the court overruled. It also entered motions for a new trial and in arrest of judgment, which motions the court overruled, and rendered judgment on the verdict for plaintiff. On appeal to the Appellate Court for the Fourth District, that court reversed the judgment, and did not remand the cause. This court granted a petition for a writ of dertiorari to review the judgment of the Appellate Court.

It is to be observed that the action is not on a contract of insurance, for no policy was issued. The suit is in tort for the alleged negligence of defendant in failing to issue the policy within a reasonable time after its agent received Fraley's...