John Hancock Mut. Life Ins. Co. v. Schlink

• Decision Date: 24 October 1898
• Citation: 51 N.E. 795,175 Ill. 284
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. SCHLINK.
• Court: Illinois Supreme Court

175 Ill. 284

51 N.E. 795

JOHN HANCOCK MUT. LIFE INS. CO.

v.SCHLINK.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Second district.

Action by Paulina Schlink against the John Hancock Mutual Life Insurance Company. A judgment for plaintiff was affirmed in the appellate court (74 Ill. App. 181), and defendant appeals. Affirmed.

Isaac C. Edwards, for appellant.

John M. Niehaus and Page, Wead & Ross, for appellee.

CRAIG, J.

This was an action brought by Paulina Schlink on a policy of insurance issued on July 22, 1895, by the John Hancock Mutual Life Insurance Company on the life of Frederick Schlink. In the declaration the policy was set out in haec verba, and it was averred that the policy was delivered to Frederick Schlink on the 7th day of August, 1895, and that he died on the 12th day of the same month. To the declaration the deefendant pleaded the general issue, and also filed four special pleas, in which it set up a provision of the policy which reads as follows: ‘This policy shall not take effect until delivered, and the first premium hereon paid, during the lifetime and good health of the insured.’ Defendant averred that the policy was not delivered, and the first premium paid, during the lifetime and good health of the insured. To the pleas the plaintiff replied double: First, she traversed the facts set up in each plea; and, second, she confessed the allegations of fact set up in the pleas, and set up new matter in avoidance. In the replications confessing and avoiding it was averred that there was a waiver of the conditions of the policy on the part of the insurance company. To the replications rejoinders were filed, and on a trial before a jury the plaintiff recovered a verdict for $2,175, upon which the court entered judgment, which on appeal was affirmed in the appellate court.

The appellant has assigned on the record six errors, three of which (the first, second, and fifth) involve questions of fact which have been settled by the judgment of the appellate court, and need not be considered here. The others (the third, fourth, and sixth) are as follows: ‘Third. The appellate court erred in holding that appellee's first, fourth, fifth, and sixth instructions, or either of them, were the law. Fourth. The appellate court erred in holding that the trial court properly refused each of appellant's first, second, third, fourth, and tenth refused instructions. Sixth. The appellate court erred in sustaining the rulings of the trial court in the admission and rejection of evidence.’

In order to obtain a clear view of the questions of law presented by the record, a brief statement of the facts is required. In the opinion of the appellate court will be found a statement of the facts, which seems to be substantially correct, as follows: ‘Charles Ballance was acting as agent for appellant at Peoria under a contract with J. B. Pendergast, the state agent of the appellant for the state of Illinois. Ballance had an office in Peoria, which had upon it a business sign designating him as general agent of appellant, and upon the stationery used by him he so called himself. While purporting to act as such agent, Ballance solicited Frederick Schlink, appellee's husband, to take out a policy of insurance upon his life in appellant's company. After some negotiations between the parties, an arrangement was made between Ballance and Schlink for the issuance of a policy on the life of the latter for $2,000, upon which the premium was to be $63.70. In payment of this premium it was agreed by the parties that a certain indebtedness of $18 owing by one Downey to Schlink should be assumed by Ballance and canceled, and that Ballance should take and receive from Schlink, in further part payment of the premium, a sewing machine to be selected by the wife of Ballance from the machines which Schlink had on hand for sale, and the difference either way was to be paid in cash; that is, if the machine and the Downey indebtedness amounted to more than the premium, Ballance should pay the difference in cash to Schlink, and, on the other hand, if these two items did not pay the premium, Schlink should pay Ballance the difference in cash. In accordance with this agreement, Frederick Schlink made and delivered to Ballance a formal application for a policy of insurance upon his life for the sum of $2,000, which was forwarded by said Ballance to appellant company, which accepted the risk, issued the policy, and forwarded the same to Ballance for delivery. After receiving the policy, Ballance saw the assured, Frederick Schlink, and notified the latter he had the policy, and was told to come and get the sewing machine and the money for the premium. Before the policy was actually delivered the assured became ill with typhoid fever, whereupon the agent, Ballance, called on George Schlink, a brother of the assured, and informed him about the agreement and the policy, and told said George Schlink that, if he would pay $25, he (the agent) would put the policy in force. After seeing the attending physician, said George Schlink went to the office of Ballance to pay to money and get the policy. Ballance being absent, his clerk accepted the $25 and delivered the policy. Three days afterwards the assured, Frederick Schlink, died from the effects of the typhoid fever.’ The contract under which Ballance was appointed agent contained these provisions: ‘The said J. B. Pendergast hereby appoints said Charles Ballance agent, with authority to procure applications for policies of insurance upon the lives of individuals, and to collect premiums, in accordance with the rules of said company. * * * The said party of the second part, as said agent, shall in no case alter, modify, waive, or change the terms, rates, or conditions of any paper or document issued by said company, nor receive moneys due or to become due to said company, except on policies or renewal receipts signed by an officer of said company.’

It is contended in the argument of counsel for appellant: First, that Ballance was the agent of Pendergast, and not the agent of appellant, and hence he could not bind the company; second, that by the language of the policy, ‘No person except the president or secretary is authorized to make alterations or discharge contracts or waive forfeitures,’ although Ballance was the agent of the company he could not waive compliance with any of the provisions of the policy; third, that Ballance, although the agent of the company, could not accept anything in payment of the first premium but cash, nor could he waive performance of the rules of the company. In the giving and refusing of instructions the court held adversely to appellant on the propositions mentioned, and what will be said in passing on the propositions will dispose of the third and...