Knights Templar & Masons' Life Indem. Co. v. Crayton

• Decision Date: 20 April 1904
• Court: Illinois Supreme Court
• Parties: KNIGHTS TEMPLAR & MASONS' LIFE INDEMNITY CO. v. CRAYTON et al.

209 Ill. 550

70 N.E. 1066

KNIGHTS TEMPLAR & MASONS' LIFE INDEMNITY CO.

v.CRAYTON et al.^***

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, Second District.

Action by Frank L. Crayton and others against the Knights Templar & Masons' Life Indemnity Company. From a judgment of the Appellate Court (110 Ill. App. 648) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Jack, Irwin, Jack & Danforth, Ward & Graydon, and Jay H. Magoon, for appellant.

Clark Varnum, W. A. Foster, and L. C. McMurtrie, for appellees.

RICKS, J.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Marshall county in an action of assumpsit by the appellees against the appellant upon a certificate of membership issued to John Crayton, the father of appellees, providing for the payment to appellees of the sum of $5,000, and of the money paid on the policy in assessments, within 60 days after notice and the receipt of satisfactory proofs of death of the said John Crayton.

The policy provided that in case of self-destruction of the holder of the policy, whether voluntary or involuntary, sane or insane, the policy should become null and void, so far as the same related to benefits, but that the company would pay the widow and heirs or devisees such an amount as the holder should have paid to the company in assessments on the same, without interest. The certificate of membership was issued to said John Crayton on the 1st day of April, 1886, upon his application, and was payable, specifically, to Frank L., Laura, and Margaret J. Crayton, the appellees and beneficiaries therein named. The insured came to his death on the 31st day of July, 1891, by means of a gunshot would through the head, and his death was either suicidal or accidental. A coroner's inquest was held on the day of the death of the insured, and the verdict of the jury was that the deceased came to his death ‘by means of a rifleball shot through his head by his own hands, from a Winchester rifle; * * * said wound having been inflicted with suicidal intent, while laboring under a fit of insanity.’ On the 8th day of August, 1891, Ellen C. Crayton, the mother of appellees, was appointed their guardian. At that time the ages of appellees were as follows: Frank L. Crayton, 17 years; Laura Crayton, 16 years; and Margaret J., commonly called Josephine, 13 years. Notice of the death was immediately given to appellant, and blanks for making proof of death, together with instructions as to what was required by appellant in making such proof, were forwarded to the guardian. By the instructions the claimant was required to state by what title she made her claim; to furnish a certificate of the attending physician; the certificate of a householder, the undertaker, and, in case of suicide or sudden death, a certified copy of the verdict, and of the evidence on which such verdict was based, before the coroner. About the 12th of August, 1891, the proofs, as required, were completed and sent to the appellant, and the receipt of such proofs was acknowledged by the appellant. In the statement of the guardian making such proof, the following, among other things, appeared:

‘Number, date, and amount of policy. No. 2,174; date, September 7, 1886; $5,000.

‘(a) In what capacity or by what title do you make complaint? (a) Guardian for Frank, Laura, and Josephine Crayton.

‘(b) Are you legally entitled to receive the entire amount payable on the policy? (b) Yes.

‘(a) Remote cause of death? (a) Supposed sunstroke some two or three years ago.

‘(c) Immediate cause of death? (c) Supposed suicide.’

Upon the receipt of the proofs of death, appellant notified the guardian that the case was one of suicide, and that the only liability of appellant, under the policy, was for the amount of assessments paid upon the policy, exclusive of interest, which was stated to be $179, and on January 24, 1892, pursuant to an agreement between Ellen C. Crayton, as the guardian of appellees, and appellant, paid to such guardian $179. The payment was made by draft or check drawn by appellant's president and manager upon the appellant company, payable to the order of Ellen C. Crayton, guardian, and contained the following: ‘Being payment in full of all demands under policy No. 2,174, on the life of John Crayton, deceased.’ Upon receipt of this check or draft, the guardian surrendered up the policy or certificate of insurance, and indorsed thereon a receipt, which purported to be ‘in full of all claims under the within policy.’

The declaration consists of a special count and the common counts. The special count is upon the policy in haec verba, and alleges the death of the insured on the 31st day of July, 1891; that appellees were the beneficiaries under the policy; that the insured performed the conditions of the policy required of him; and that appellant was furnished with satisfactory proof of death.

Eleven pleas were filed. A demurrer was sustained to the second, fourth, and fifth pleas, and, as error is not assigned upon this, it need not be further noticed. The first plea was the general issue; the third, that the assured committed suicide or perished by self-destruction, voluntary or involuntary, while sane or insane; the sixth, that the plaintiffs did not make claim for benefits under said policy within six months after death of the assured, as is provided by the policy, constitution, and by-laws; the seventh is the 10-years statute of limitations; the eighth, fraud and misrepresentation in obtaining the certificate of membership sued on; the ninth, settlement and release; the tenth, settlement and nondisaffirmance by the plaintiff; and the eleventh, ratification of the settlement by the plaintiffs. Replications were filed to the pleas, and upon a trial before a jury a verdict was rendered for appellees for $7,457.50. A motion for new trial was made by appellants and overruled, and judgment entered on the verdict.

Just prior to entering upon the trial in the court below, appellant asked leave to file four additional pleas, which was denied by the court; and, though error is assigned upon the action of the court, no error is pointed out or insisted upon by appellant in its brief and argument, and the same need not be further adverted to.

The only errors urged for our consideration relate to the giving and refusing of instructions.

At the close of the plaintiffs' evidence the appellant requested the court to give, and offered, an instruction directing a verdict in its favor. This instruction was refused, and at the close of all the evidence was again offered. As appellant, after the close of plaintiffs' evidence, offered evidence on its part, it thereby made a submission of the case upon the whole evidence, and waived its right to insist upon the error, if any, in refusing the peremptory instruction at the close of the plaintiffs' evidence. West Chicago Street Railroad Co. v. McCallum, 169 Ill. 240, 48 N. E. 424. It also appears that this error was not insisted upon in the motion for a new trial, and cannot now be relied upon for that reason. Illinois Central Railroad Co. v. Johnson, 191 Ill. 594, 61 N. E. 334;Brewer & Hoffman Brewing Co. v. Boddie, 162 Ill. 346, 44 N. E. 819.

We are called upon to determine whether the peremptory instruction should have been given at the close of all the evidence. We have examined the evidence carefully, and are impressed with the résumé of it given by the Appellate Court in its opinion, which is as follows: ‘The main question is whether John Crayton committed suicide. We have read the evidence on this subject in the record itself, and have endeavored to give it careful consideration. There were circumstances proved from which the inference of suicide might be drawn. Deceased was killed by a bullet which entered near the center of his forehead and passed out near the rim of his hat on the back of his head. The shooting took place on his barn floor, between 11 a. m. and noon. His body was found lying on the floor, with his head to the east, and with his Winchester rifle between or near his legs, pointing to the southeast. His rifle contained only an exploded shell. A pine stick lay near him, which defendant asks us to infer he used in firing the gun. Deceased had suffered from a sunstroke some years before, and since then had been moody, excitable, and peculiar, and his family and neighbors doubted his sanity. During the forenoon of his death he had spoken harshly to his son about being out late at night. On the other hand, it does not appear that he had ever expressed or indicated any suicidal purpose or intent. He went to the barn about eleven o'clock that forenoon for the expressed purpose of cleaning his rifle. He called for certain apparatus he had for that purpose, and caused his children to search the house for it. When they could not find it, he said he would go to the barn and use a wire for a ramrod; meaning in cleaning his gun. His body was found in front of and close to his workbench in the barn, in front of a window, and with the big barn doors open towards the house. Pieces of cloth and other suitable apparatus for cleaning the gun were on the bench. All the cartridges but this one were on the bench. The exploded shell in the gun bore the marks of a knife. A common jackknife was stuck in the bench. Deceased had on his boots, and could not have fired the gun with his feet. It was shown that kindling wood was often split at that place, and that there were quite a number of pine sticks lying near where deceased fell; thus weakening the inference that deceased had been using the stick which defendant's witness described as lying near his body. There was no discoloration by powder or by burning about the head of deceased. Experiments were made during the trial by firing cartridges of the same make and size out of the same gun at a heavy cardboard paper-one where the muzzle of the...