Helm v. Illinois Commercial Men's Ass'n

• Decision Date: 05 October 1917
• Docket Number: No. 10922.,10922.
• Citation: 117 N.E. 63,279 Ill. 570
• Parties: HELM et al. v. ILLINOIS COMMERCIAL MEN'S ASS'N.
• Court: Illinois Supreme Court

279 Ill. 570

117 N.E. 63

HELM et al.

v.ILLINOIS COMMERCIAL MEN'S ASS'N.

No. 10922.

Supreme Court of Illinois.

June 21, 1917.

Rehearing Denied Oct. 5, 1917.

Appeal from First Branch, Appellate Court, First District, on Appeal from Municipal Court of Chicago; James C. Martin, Judge.

Action by Maude B. Helm and another against the Illinois Commercial Men's Association. From a judgment of the Appellate Court (199 Ill. App. 344) affirming a judgment dismissing the suit plaintiffs appeal. Reversed and remanded.Bulkley, More & Tallmadge, of Chicago, for appellants.

Ryan, Condon & Livingston, of Chicago (Irvin I. Livingston, of Chicago, of counsel), for appellee.

DUNCAN, J.

Edgar L. Helm applied for and received an accident insurance policy issued to him by the Illinois Commercial Men's Association, appellee, on November 30, 1909, in which he was insured as a traveling man. One of the provisions of the policy is:

‘And in case of bodily injury, or injuries received through external, violent and accidental means, which shall, independently of all other causes, result in the death of said member, there shall be payable to Maude B. Helm, wife, and Evelyn Helm, daughter of Edgar L. Helm, * * * the sum of $5,000 * * * such pay ment to be made within ninety days after the receipt by said association of satisfactory proof of the happening of such injury or injuries and the result of such injury or injuries,’ etc.

The assured was instantly killed by a railroad train February 1, 1912. Appellants, the wife and daughter of the assured and the beneficiaries named in said policy, on March 8, 1913, brought this suit to recover $5,000, the sum named in the policy. The trial was before the court and without a jury. No written propositions of law were submitted to the court, but at the close of appellants' evidence appellee moved the court to find for the defendant and to dismiss the suit at plaintiffs' costs. The court sustained the motion, dismissed the suit, and entered judgment for costs against appellants, and proper exceptions were taken and preserved by them. An appeal was prosecuted to Branch B of the Appellate Court for the First District. That court in April, 1916, reversed the judgment of the municipal court and remanded the cause. A rehearing was granted, and the judgment of the municipal court was affirmed in June, 1916. A second rehearing was then allowed, and final judgment was entered by the Appellate Court affirming the judgment of the trial court June 29, 1916. A certificate of importance was granted for an appeal to this court.

Appellee set up two affirmative defenses in its affidavit of merits that were relied on in the lower courts and are relied on in this court as being proved by appellants' evidence: (1) That the deceased was not a member of the association in good standing at the time of the accident because of his failure to pay his annual dues on or before January 2, 1912, as provided by the policy and by-laws; and (2) that the accident happened (a) while the deceased was not in the exercise of due diligence for his self-protection, and (b) while he was unnecessarily exposing himself to danger, within the meaning of exceptions from liability contained in the bylaws.

The main question raised and argued in this court is whether or not the trial court erred in sustaining appellee's motion to find for it and to dismiss the suit at appellants' costs. In support of the trial court's action appellee argues that, inasmuch as a jury was waived, the motion of appellee authorized that court to pass on and to determine all issues of fact as well as all issues of law applicable to the case, under the evidence introduced by appellants. Appellants, on the other hand, contend that the motion of appellee only raised the question of law as to whether or not appellants' evidence fairly tended to prove all of the ultimate facts necessary to entitle them to recover from appellee after considering appellants' evidence most favorable to them, and that the court was not authorized, under the motion, to weigh the evidence and determine the preponderance thereof and to settle the questions of fact. It is necessary for us first to consider these contentions. If appellee's contention is correct, the affirmance of the trial court's judgment by the Appellate Court is final; as this court can only review questions of law in this class of cases when brought to it by writ of error or appeal from the Appellate Court, and is bound by the finding of the Appellate Court as to the ultimate facts. A certificate by the Appellate Court that a case involves questions of law, by reason of principal and collateral interests involved, does not present questions of law for this court where no question of law is raised or preserved by any one of the methods prescribed by the practice in this state. Commercial Nat. Bank v. Cauniff, 151 Ill. 329, 37 N. E. 898.

We are cited to the cases of Hayward v. Jackman, 96 Iowa, 77, 64 N. W. 667,Neuberger v. Keim, 134 N. Y. 35, 31 N. E. 268, and Lambuth v. Stetson & Post Mill Co., 14 Wash. 187, 44 Pac. 148, as authority for the proposition that, where the trial is before the court without a jury, such a motion as was made by appellee in the trial court raises both questions of law and fact, and authorizes the court to weigh the evidence and to enter judgment in favor of the party whose contentions are supported by such facts. We have examined those cases and the reasoning advanced by those courts for the holdings therein announced. We must hold that the rules announced in those jurisdictions are inapplicable to the practice in this state as already announced in several decisions of this court.

There is no dispute in this case as to the facts. Appellee introduced no evidence whatever. In a trial before the court without a jury a legal question only is raised by demurring to the evidence. The same question may be raised by submitting a proposition to the court or by a motion to find for the party. A motion to find for the defendant and to dismiss the suit at the plaintiff's cost raises the same legal questions as a demurrer to the evidence by the defendant in a trial before the court. Conway v. Garden City Paving Co., 190 Ill. 89, 60 N. E. 82;Smith v. Billings, 169 Ill. 294, 48 N. E. 683;McMicken v. Safford, 197 Ill. 540, 64 N. E. 540. If the court sustains the motion, judgment necessarily follows in favor of the party making the motion. The motion raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion. Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N. E. 614,13 Ann. Cas. 369.

If there is no evidence, or but a scintilla of evidence, tending to prove the material ultimate facts necessary to sustain the plaintiff's cause of action, such a motion by the defendant should be sustained; but if there is in the record any evidence, although contradicted, which the court can reasonably say fairly tends to prove all the ultimate facts necessary to entitle the plaintiff to judgment, then the court should overrule the motion, unless there is also uncontradicted evidence in the record that establishes an affirmative defense for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 78 N. E. 599.

Where evidence of an affirmative defense is offered by the plaintiff, it is proper to sustain such a motion by the defendant, even though all the material facts necessary to sustain plaintiff's cause of action have been proven, if the evidence of the affirmative defense is not contradicted or explained. Wallner v. Chicago Consolidated Traction Co., 245 Ill. 148, 91 N. E. 1053.

Should such a motion be denied, the court, in effect, by that decision announces that the plaintiff is entitled to have a finding on the questions of fact, and should at once proceed to determine the question of the preponderance of the evidence, unless further evidence is introduced, and render judgment accordingly. It is not requisite, under our practice, that either party should ask the court to decide the question of fact after overruling such a motion where there is no jury, or to submit the case to a jury where a motion for a directed verdict has been overruled. Wolf v. Chicago Sign Printing Co. supra.

In a case before a court without a jury, if at the close of the plaintiff's evidence the defendant does not desire to introduce any evidence and desires the court to take the case on the evidence of plaintiff and weigh it and make a finding of the facts and render judgment accordingly, he should plainly so inform the court. The court may then weigh the evidence, determine the question of a preponderance thereof, and enter judgment accordingly.

If only a motion to find for defendant is made, it must be understood that it only raises a question of law, as heretofore explained, and on such a motion the court cannot weigh the evidence and finally settle the issues of fact until the question of law is settled in favor of the plaintiff. If that question of law is not in some way raised and preserved for review by this court, this court cannot consider that question of law, however insufficient the evidence might appear to support the judgment of the court. Cothran v. Ellis, 125 Ill. 496, 16 N. E. 646. This was evidently the purpose of appellee in making the motion in question, that it might preserve the same for review in this court had the court ruled against it. It is also appellants' right to have that question of law reviewed in this court after first having submitted it to the Appellate Court.

The defense that the assured was not a member of the association in good standing for failure...