Cont'l Life Ins. Co. v. Rogers

• Decision Date: 25 January 1887
• Citation: 119 Ill. 474,10 N.E. 242
• Parties: CONTINENTAL LIFE INS. CO. v. ROGERS.
• Court: Illinois Supreme Court

119 Ill. 474

10 N.E. 242

CONTINENTAL LIFE INS. CO.

v.ROGERS.

Supreme Court of Illinois.

January 25, 1887.

Appeal from appellate court, First district.

The reference to the application in the policy made the application a part of the policy, and a warranty that the statements in the application were true. Vose v. Eagle Life & Health Ins. Co., 6 Cush. 47;Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416;Jefferson Ins. Co. v. Cotheal, 7 Wend. 73;Ripley v. AEtna Ins. Co., 30 N. Y. 136;Mutual Ben. Life Ins. Co. v. Robertson, 59 Ill. 123. The application being thus made a warranty, the truth of the statement therein contained was a condition precedent to the right of plaintiff to recover on the policy, and the burden of proving the truth of the same was on the plaintiff, under the familiar rule that plaintiff must aver and prove the performance of every condition precedent. Bobbitt v. Liverpool, London & Globe Ins. Co., 66 N. C. 70;McLoon v. Commercial Mut. Ins. Co., 100 Mass. 472;Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19;Kelsey v. Universal Life Ins. Co., 35 Conn. 225;Wilson v. Hampden Fire Ins. Co., 4 R. I. 159;Ripley v. AEtna Ins. Co., 30 N. Y. 163;Craig v. United States Ins. Co., 1 Pet. C. C. 410.‘The warranty makes the contract hypothetical; that is, it shall be binding if the warranty be complied with.’ Marsh. Ins. 348.

The cases cited by plaintiff to maintain the position that it was incumbent upon the defendant to show a breach of warranty-viz., Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79;Murray v. Insurance Co., 85 N. Y. 236;Mutual Ben. Life Ins. Co. v. Robertson, 59 Ill. 123; and Swick v. Home Life Ins. Co., 2 Dill. 160-are not in point, because the defendants, by their method of pleading, voluntarily shifted the burden of proof. Nor are the cases of Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35;Herron v. Peoria M. & F. Ins. Co., 28 Ill. 235; and Union Ins. Co. v. McGookey, 33 Ohio St. 555,-in point, because the statements in the application were held to be representations. Nor is the case of Trenton v. Mutual L. & F. Ins. Co., 24 N. J. Law, 576, in point, because in that case plaintiff proved the truth of the statements, as we maintain appellee ought to have done.

The fact that some five months after Marks, the manager of the north-western department of the defendant, had been notified of the death, and furnished blanks for proof of death, and received and promised to forward the papers prepared as such proofs to the home office, Barton, who had charge for the defendant of the settlement of losses, came to Chicago, and sought and had interviews with plaintiff's attorney about the loss under the policy, and finally wholly refused to pay the policy, without suggesting any defect in the proof, amounts to a waiver of any defect in formal proof of death, or is rather an acknowledgment on defendant's part that the requisite proofs were received by it. Edwards v. Travelers' Life Ins. Co., 20 Fed. Rep. 661, 663;Allegre v. Maryland Ins. Co., 6 Har. & J. 408, 412, 413;O' Niel v. Buffalo Ins. Co., 3 N. Y. 122, 128;Firemen's Ins. Co. v. Crandall, 33 Ala. 9;Clark v. New England Mut. Fire Ins. Co., 6 Cush. 342, 345;Bartlett v. Union M. F. Ins. Co., 46 Me. 500, 502;German American Ins. Co. v. Davidson, 67 Ga. 11;Portsmouth Ins. Co. v. Reynolds, 32 Grat. 613, 629;Kimball v. Hamilton Fire Ins. Co., 8 Bosw. 495; Home Ins. & B. Co. v. Myer, 93 Ill. 271, 275, 276;Peoria M. & F. Ins. Co. v. Lewis, 18 Ill. 553, 560;Insurance Co. v. Hope, 58 Ill. 75;Great Western Ins. Co. v. Staaden, 26 Ill. 360, 365;Knickerbocker Ins. Co. v. Gould, 80 Ill. 388;Insurance Co. v. McDowell, 50 Ill. 120, 129;German Ins. Co. v. Ward, 90 Ill. 550. The jury were justified in believing from the evidence that due proofs of death were made in accordance with the requirements of the policy, and the allegations in the plaintiff's declaration. Butterworth v. Western Assur. Co., 132 Mass. 489, 492;Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. St. 568; Ben Franklin Ins. Co. v. Flynn, 98 Pa. St. 627, 636; Daul v. Insurance Co., 35 La. Ann. 98, 100;Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164, 168;German Ins. Co. v. Ward, 90 Ill. 550.

To hold that no recovery can be had until the beneficiary has in the first instance demonstrated, after the death of the insured, the truth of all the negative responses to questions, is to make the attempt to enforce a policy a solemn farce, and virtually to declare that no recovery can be had. Piedmont Ins. Co. v. Ewing, 92 U. S. 377;Grangers' Ins. Co. v. Brown, 57 Miss. 308, 315;Redman v. AEtna Ins. Co., 49 Wis. 431, 4 N. W. Rep. 591;Swick v. Home Life Ins. Co., 2 Dill. 160, per DILLON, J.; Holabird v. Atlantic Ins. Co., Id. 166, per TREAT, J.; Northwestern Mut. Life Ins. Co. v. Hazelett, 4 N. E. Rep. 582; Boisblanc v. Life Ins. Co., 34 La. Ann. 1167;Simmons v. Insurance Co., 8 W. Va. 474, 485-487;Jacobs v. National Life Ins. Co., 1 MacArthur, 632, 634, 639;Union Ins. Co. v. McGookey, 33 Ohio St. 555, 560;Boos v. World Mut. Life Ins. Co., 6 Thomp. & C. 364; Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79;Grattan v. National Life Ins. Co., 15 Hun, 75, 78, 79; Murray v. New York Life Ins. Co., 85 N. Y. 236;Trenton Mut. Life Ins. Co. v. Johnson, 24 N. J. Law, 576, 579, 580; New York Life Ins. Co. v. Graham, 2 Duv. 506;Leete v. Gresham Life Ins. Co., 7 Eng. Law & Eq. 578; Guardian Life Ins. Co. v. Hogan, 80 Ill. 35, 40;Mutual Ben. Life Ins. Co. v. Robertson, 59 Ill. 123, 125, 126;Herron v. Peoria M. & F. Ins. Co., 28 Ill. 235, 238;Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354, 2 Greenl. Ev. (14th Ed.) 390, note a.

But, if the application had not been proved as set out in the declaration, the plaintiff's allegation as to application in such declaration was surplusage, and she was not bound to prove truth of same in the first instance. The burden was on the defendant to set up and prove the making of the application, and the want of truth in the statements therein made, this being a suit on a life policy, even though the policy refers to the application, and declares it to be thereby made a part of this policy, and a warranty on the part of the assured. Redman v. AEtna Ins. Co., 49 Wis. 431, 4 N. W. Rep. 591;Jacobs v. National Life Ins. Co., 1 MacArthur, 632, 634, 639;Union Ins. Co. v. McGookey, 33 Ohio St. 555, 560;Simmons v. Insurance Co., 8 W. Va. 478, 485-487;Guardian Life Ins. Co. v. Hogan, 80 Ill. 35,40;Mutual Ben. Life Ins. Co. v. Robertson, 59 Ill. 123, 126;Herron v. Peoria M. & F. Ins. Co., 28 Ill. 235, 238.

Swift & Campbell, for Continental Life Ins. Co., appellant.

Smith & Burgett, for Caroline S. Rogers, appellee.

MULKEY, J.

The appellee, Caroline S. Rogers, recovered a judgment in the superior court of Cook county against the Continental Life Insurance Company for $5,522.50 on a policy of insurance issued by the company to the plaintiff upon the life of her husband, Herbert S. Rogers. The policy is in the usual form, and bears date May 23, 1881. On the defendant's appeal, the judgment was affirmed by the appellate court for the First district, and the company thereupon appealed to this court. The declaration is in assumpsit, and contains two counts. The first is a special count setting out the policy and application in hac verba , followed by the usual averments in such cases. The second is a consolidated common count for money had and received, for interest, and for money due on an account stated. The plea of non assumpsit alone was filed to the whole declaration.

The plaintiff, being sworn as a witness in her own behalf, testified that she was the wife of Herbert S. Rogers at the time of making the policy; that he died on the sixteenth of December, 1883, at Minneapolis; that she found the policy, together with the company's receipts showing payments of the premiums, among his papers, which were produced in court, and put in evidence. The application, being in the possession of the defendant, was not offered in evidence by plaintiff, or, indeed, by either party, nor had the defendant been served with any notice to produce it on the trial other than that which may be implied by law from the bringing of the suit, and setting it out in the declaration.

The policy offered in evidence contained the following provisions:

‘Provided, always, and it is hereby declared to be the true intent and meaning of this policy, and the same is granted by the company and accepted by the assured upon the following express conditions and agreements: * * *

‘ Second. That the answers, statements, and declarations contained in or indorsed upon the application for this insurance-which application is hereby referred to and made part and parcel of this contract as if fully recited herein, and upon the faith of which this agreement is made-are warranted by the assured to be true in all respects; and that if this policy has been obtained by or through any fraud, misrepresentation, or concealment, said policy shall be absolutely null and void. * * *

‘ Seventh. That no claim shall exist under this policy unless due notice and satisfactory proof of death shall be presented in writing to the officers of said company at the home office in Hartford, Connecticut, within two years after the death of the person whose life is hereby insured.’

In addition to this, the application, which is signed by the company as well as the assured, contains the following provision: ‘And it is hereby covenanted and agreed that the statements and representations contained in this application and declaration shall be the basis of and form part of the contract, or policy of insurance, between said party or parties signing this application and the said Continental Life Insurance Company, which statements and representations are hereby warranted to be true; and any policy which may be issued upon this application by the Continental Life Insurance Company, and accepted by the applicant, shall be so issued and accepted upon the express...