Hayes v. Massachusetts Mut. Life Ins. Co.

• Decision Date: 27 September 1888
• Citation: 18 N.E. 322,125 Ill. 626
• Parties: HAYES et al. v. MASSACHUSETTS MUT. LIFE INS. CO.
• Court: Illinois Supreme Court

125 Ill. 626

18 N.E. 322

HAYES et al.

v.MASSACHUSETTS MUT. LIFE INS. CO.

Supreme Court of Illinois.

September 27, 1888.

Error to appellate court, Third district.

Action by Ellis W. Hayes and Daniel D. Hayes against Massachusetts Mutual Life Insurance Company on a life insurance policy. Judgment for plaintiffs reversed by appellate court, whereupon they bring error.

CRAIG, J., dissents.

SHOPE, J.

Plaintiffs in error, by their next friend, brought their action in the Coles circuit court, against the defendant in error. Plaintiffs counted- First. On a written policy of insurance, dated February 16, 1874, upon the life of Job M. Hayers, for $12,000, for the benefit of plaintiffs in error, issued by the defendant company; averred the death of the assured in August, 1876, and the liability of the defendant company to plaintiffs in error upon the policy; averred that James F. Hughes was guardian of plaintiffs, and had control of the policy; that defendant by its agent, in order to cheat and defraud plaintiffs and obtain a fraudulent settlement and the possession of the policy, in April, 1877, falsely, covinously, etc., with intent to cheat and defraud plaintiffs, represented to plaintiffs' guardian that the assured, before the policy issued, used intoxicating liquors to excess, and also used intoxicating liquors daily and habitually, which representations were false, and known to be false when made; averred that the assured, before the issuance of the policy, had not used intoxicating liquors to excess, and had not used intoxicating liquors daily or habitually; averred, if such representations had been true, the policy thereby would have been vitiated and annulled, and that the guardian relied thereon, of which the defendant had notice, whereby the defendant obtained of the guardian an agreement to accept $6,045 in settlement for and surrender of the policy, with intent to cheat and defraud plaintiffs; averred that, after making said agreement, defendant paid the guardian the $6,045, and procured the surrender of the policy; further averred that the agreement and surrender was procured and obtained by fraud, whereby the remaining portion due on the policy was lost to plaintiffs in error. Second. Identical with the first count, except that the policy was set out in haec verba. And, third, in trover, in the usual form, for the wrongful conversion of the policy, (setting the same out in haec verba,) laying the damages at $12,000. Issue was taken on the pleas: (1) General issue; and (2) five years' statute of limitations. Trial by jury. Verdict and judgment for plaintiffs for $9,060. On appeal to the appellate court for the Third district, the judgment of the circuit court was reversed; that court finding in its final order ‘that the policy of insurance for $12,000, issued on the 16th day of February, 1874, upon the life of Job Hayes for the benefit of Ellis W. Hayes and Daniel D. Hayes, was, on the 20th of April, 1877, by James F. Hughes, guardian of said Ellis W. and Daniel D. Hayes, surrendered to the agent of said insurance company, for the consideration of $6,045, then paid to the said guardian by the agent of said insurance company;’ and ‘that the charge in the declaration that the surrender of said policy was procured by fraud upon the part of said insurance company, or its agent or agents, is not supported by the evidence, and is not true in fact.’ No order of remandment was made. The record is brought into this court by writ of error.

It is contended by plaintiffs in error that the finding of facts recited in the final order of the appellate court was not sufficient, and not such as is required by the eighty-seventh section of the practice act. In the section referred to it is provided that ‘if any final determination of any cause, as specified in the preceding sections, shall be made by the appellate court, as the result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such appellate court to recite in its final order, judgment, or decree the facts as found, and the judgment of the appellate court shall be final and conclusive as to all matters of fact in controversy in such cause.’ In so far, then, as the appellate court in its final order has found the facts necessary to a recovery different from the finding of the trial court, such finding is conclusive upon this court; and the finding of facts contemplated by the section of the statute quoted is, as announced in Brown v. City of Aurora, 109 Ill. 165, and Rogers v. Railroad Co., 117 Ill. 115, 6 N. E. Rep. 889, ‘the finding of the ultimate fact or facts upon the existence or non-existence of which, as set up in the pleadings in the cause, the rights of the parties depend; that it does not mean that the appellate court shall find what was the evidence of those facts, or that it shall find those merely subordinate or evidentiary facts which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action.’

Two ultimate facts were found and certified by the appellate court: (1) ‘That the policy of insurance for $12,000, issued on the 16th day of February, 1874, upon the life of Job Hayes, for the benefit of Ellis W. Hayes and Daniel D. Hayes, was, on the 20th of April, 1877, by James F. Hughes, guardian of said Ellis W. and Daniel D. Hayes, surrendered to the agent of said insurance company for the consideration of $6,045 then paid to said guardian by the agent of said insurance company;’ and (2) that the charge ‘that the surrender of said policy was procured by fraud upon the part of said insurance company, or its agent or agents, is not supported by the evidence, and is not true in fact.’ In respect to the first, it is apparent that the finding of the appellate court does not differ from the finding of the circuit court. The ultimate fact here is the surrender of the $12,000 policy by the guardian, for the consideration of $6,045. Such surrender was averred in the declaration, and admitted by the defendant company, and must have been found as a fact by the trial court. As to the second, however, if the circuit court rendered its finding and judgment upon the case made by and under the first and second counts of the declaration, it is equally obvious that the finding by the appellate court differed from the finding by the circuit court; and, under the authorities before referred to, this court is precluded from reviewing the question as to whether or not the surrender of the policy was procured by fraud as alleged in the declaration. In the first and second counts of the declaration it was averred that the surrender of the policy was procured by fraud, setting out in what the fraud consisted; and, in certifying that the charge of fraud was not true in fact, the appellate court did all that the statute required it to do,-it certified, not the evidentiary facts, but the ultimate fact, and its certificate is sufficient under the law.

In so far, then, as the rights of plaintiffs in error to a recovery depended upon the existence of the facts averred in the first and second counts of the declaration, the adverse determination and finding of the appellate court is conclusive. But the declaration upon which the parties went to trial contained three counts,-the first and second in form counts in case; and the third a count in trover, for the wrongful conversion of the policy of insurance. There was not a misjoinder of actions, for counts in case and trover may be joined. 1 Chit. Pl. 199. And trover will lie for the wrongful conversion of valuable papers, or evidences of title to real or personal property, for checks, promissory notes, bank-bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, etc., (Garvin v. Wiswell, 83 Ill. 215;Alexander v. Rundle, 75 Ill. 85; 6 Wait, Act. & Def. 155, tit. ‘Trover,’ and cases there cited,) and for a policy of insurance, ( Harding v. Carter, opinion by Lord MANSFIELD, referred to and cited in 1 Park. Ins. 4.)

The verdict was general. If it be assumed, as we do, that the gravamen of the cause of action, set out in the two counts in case, was the alleged fraudulent representations of defendant in error, and that the special finding by the appellate court, that the evidence did not support the charge of fraud, rendered a recovery upon those counts impossible, why, it is asked, should not the verdict and judgment of the circuit court have been sustained under the third count? Counsel for defendant in error contend, by way of answer, that to maintain trover the plaintiff must show a tortious conversion by the defendant; and that at the time of the conversion the plaintiff had a right of property in the chattel converted, and the possession, or the immediate right of possession, thereof; citing Owens v. Weedman, 82 Ill. 409. And such we understand to be the law. But counsel further contend that plaintiffs in error, to prove the tortious conversion, relied on the fraudulent acts charged in the two counts in case; and that the finding of the appellate court that such charge was not supported by the evidence, and not true in fact, is conclusive of the whole question. But it by no means follows that because the defendant in error was not guilty of the fraud charged in these counts plaintiffs in error could not recover upon the count in trover, if a case was made thereunder. Whether a recovery could be had under this count depended upon the evidence.

This policy of insurance was the property of plaintiffs in error. Harding v. Carter, supra. They were the sole beneficiaries named therein, and alone entitled to have and receive the sum of money therein expressed. It was in their legal possession. The...