Farmers' & Mechanics' Life Ass'n v. Caine

• Decision Date: 07 February 1907
• Citation: 79 N.E. 956,224 Ill. 599
• Court: Illinois Supreme Court
• Parties: FARMERS' & MECHANICS' LIFE ASS'N v. CAINE.

224 Ill. 599

79 N.E. 956

FARMERS' & MECHANICS' LIFE ASS'N

v.CAINE.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 7, 1907.

Appeal from Appellate Court, Second District.

Action by Mary Ann Caine against the Farmers' & Mechanics' Life Association. From a judgment of the Appellate Court (123 Ill. App. 419), affirming a judgment for plaintiff, defendant appeals. Affirmed.

George C. Gale and R. D. Robinson, for appellant.

Williams, Lawrence & Green, for appellee.

PER CURIAM.

Appellee, as beneficiary under a certificate issued by appellant to John Caine, her deceased husband, brought her suit in assumpsit on August 5, 1903, in the Knox county circuit court for $2,000, alleging the assured, John Caine, died August 17, 1902. The declaration consisted of one count, and set out, in substance, the terms of the benefit certificate, which is denominated a policy, alleging that the instrument was in the custody of the defendant association. The policy was for $2,000, payable upon the death of the assured to appellee, his wife, and the calls were to be paid in quarterly assessments of $8.80 each, payable on the last days of January, April, July, and October of each year. The assessment due April 30, 1902, was not paid, but appellee gave the defendant her note for that assessment, due in one month, and she defaulted in the payment of that note. When the July assessment became due appellee asked from appellant an extension of time for the payment thereof, and claims that her request was complied with.

To the declaration in this case the appellant filed its first plea, which is in the nature of a plea res judicata. By this plea it is alleged that the appellee, at the June term, 1903, of the circuit court of Knox county, Ill., filed her bill in chancery against appellant, which bill is set out in haec verba, and alleges the holding of the policy by her late husband in the appellant association, with the terms thereof, and the death of the assured, and then alleges that while the assured was a corpse, and before his burial, and while appellee was in mental and bodily distress and without counsel or adviser, upon the assurance made by and on behalf of appellant to her by Marsh, president of appellant, that her rights under the policy had lapsed, and that she had no legal right or claim against said company for the benefit, appellant obtained from her a surrender of the policy upon the payment of $200-one-tenth of the amount that was legally due her; that when she was able to get counsel she made proof of death; that one call, amounting to $8.80, fell due April 30, 1902, and upon a representation of her husband that he was unable to pay the same, appellant accepted her note in payment of said assessment; that on July 31, 1902, another assessment of the same amount became due, and at her request the time for the payment of the same was extended by appellant; that it was customary for said association to extend the time of payment of assessments, and that the policy remained equitably in full force and virtue at the death of her husband; and that it was the duty of the company to pay her the face of the policy, less $200 theretofore paid to her. She prayed that appellant be required to answer the bill without oath, and decreed to pay to her the amount of $1,780. The plea further avers that the bill was subsequently amended by enlarging the charges of fraud, in which amendment it was alleged that Marsh, the president of the appellate association, represented to her that she had no ground for recovery against the association, but that as he was her friend, and desired to render her assistance, he would pay her $200 if she would surrender the policy, and that she did surrender it, and received his personal check for the $200, and that the check was in short time (an hour or two) taken up by one of the clerks of said president by paying currency therefor. The prayer was also amended to ask that the surrender of the policy be set aside and be held for naught. The plea further stated that upon the filing of the bill appellant interposed a general demurrer thereto, and that said demurrer was sustained by the court, and that appellee stood by her bill, and the court thereupon entered judgment for the defendant upon the same; that said judgment is still in full force, and was for the same cause of action set forth in the declaration in this cause. To this plea appellee replied that the ‘general demurrer of the defendant to the bill of complaint in said plea copied was ‘that complainant has not by her said bill made or stated such a case as entitled her in a court of equity to discovery or relief from or against this defendant touching the matters contained in the said bill, or any of such matters,’ wherefore the court sustained said demurrer, on the ground that the remedy of complainant (now plaintiff) was at law and not in equity,' and concluded with a verification. To this replication appellant demurred specially and generally. The demurrer was carried back to the plea, and sustained as to that plea.

Appellant's fifth plea was a plea intended as a plea of accord and satisfaction, in which it is stated that after the death of the assured the plaintiff and defendant in the cause agreed upon the sum of $200 to be paid in discharge and satisfaction of all claims that plaintiff might have against the defendant on account of said contract, and that the defendant paid the plaintiff the said sum of $200, and the plaintiff accepted the same in full satisfaction and discharge of the claim and demand set up in the declaration, and surrendered and released to the defendant the policy of insurance. To this plea the plaintiff first replied that the release was obtained through fraud on the part of the president of said association; that while her husband, who was accidently killed, was a corpse, and while she was without means to prepare the body for burial, the president of the defendant (appellant) came to her home, and assured her of his disinterested sympathy and friendship, and advised her that she was technically barred from recovering anything upon the policy, telling her that, as an assurance of friendship and good will upon the part of the association, he would upon its behalf make her a present of $200 upon her surrendering said policy of insurance to him, as president of the association, for cancellation; that said Marsh assured her that he would take no undue advantage of her, and was acting for her best interests, and that, while he was acting without authority from the association, his act would be ratified by it, and that owing to her distress of mind and body due to her sudden bereavement, and confiding in the statements of said Marsh, she yielded to his persuasions, and signed a writing which she believes to have been a statement indorsed upon the policy canceling and surrendering all her rights, and delivered the same to said Marsh, as president of said association, and received his personal check for $200, which was in an hour or two thereafter taken up and paid by some agent of said association with currency. To this replication a general demurrer was interposed, when appellee took leave to amend the replication, which was done by adding the allegation that she relied implicitly on the false and fraudulent statements of Marsh, the president of the appellant association, and in consequence thereof accepted the $200 and surrendered the policy. To the replication as thus amended the defendant below rejoined that plaintiff accepted the $200 in full satisfaction on August 18, 1902, and has from that time hitherto retained said $200, and never returned, or offered to return, the same, or rescind the contract of settlement. Plaintiff surrejoined that the acceptance by her of the $200 was the result of a fraud perpetrated by the defendant in manner and form as set out in her replication to defendant's fifth plea, and that she was willing to allow the $200 paid to her to be deducted from the money due her under the policy, and also filed an additional surrejoinder, to the effect that, immediately after the 18th of...