Logan v. Mut. Life Ins. Co. of New York

• Decision Date: 16 June 1920
• Docket Number: No. 13166.,13166.
• Citation: 293 Ill. 510,127 N.E. 688
• Parties: LOGAN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Illinois Supreme Court

293 Ill. 510

127 N.E. 688

LOGAN

v.MUTUAL LIFE INS. CO. OF NEW YORK.

No. 13166.

Supreme Court of Illinois.

June 16, 1920.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Moultrie County; G. A. Sentel, Judge.

Suit by Martha M. Logan against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Winston, Strawn & Shaw, of Chicago, and J. L. McLaughlin, of Sullivan (Silas H. Strawn and James H. Winston, both of Chicago, and William L. Patton, of Springfield, of counsel), for plaintiff in error.

Walter H. Mills and John R. Fitzgerald, both of Decatur (Mills Bros. and Whitley & Fitzgerald, all of Decatur, and John A. Walgren, of Chicago, of counsel), for defendant in error.

FARMER, J.

This suit was brought by plaintiff, Martha M. Logan, to recover on a contract of insurance alleged to have been entered into between plaintiff's husband and defendant, the Mutual Life Insurance Company of New York, and evidenced by a life insurance policy on the life of plaintiff's husband in the amount of $10,000. The declaration was in appropriate form and set out a copy of the policy sued on, which, it is alleged, was executed January 15, 1917, delivered to the insured, and that he died January 20, 1917. The declaration alleged proofs of the death were made to defendant and that it refused to pay the policy. To the declaration defendant pleaded: (1) The general issue; (2) that defendant was not liable because the policy was never delivered and never became binding upon it; (3) that the application for the insurance was made by the insured upon the express understanding that it should not bind the insured to accept the policy; (4) that the policy never went into effect. Plaintiff joined issue on the first plea (general issue) and demurred to the three special pleas, assigning as special causes of demurrer that the matters of defense alleged in the second, third, and fourth pleas, if admissible, would be admissible under the general issue. The court sustained the demurrer, and the cause went to trial on issue joined on the plea of general issue. The jury returned a verdict for the plaintiff for $10,855.54, being the face of the policy and interest, upon which the court rendered judgment. Defendant appealed to the Appellate Court for the Third District, where the judgment was affirmed. A petition for writ of certiorari was allowed by this court, and the case is brought here for review.

The defense relied upon by defendant and set up in its special pleas, to which demurrers were sustained, was that the application for insurance by plaintiff's husband and the medical examination were made under the express understanding and agreement that the insured was not obligated to take the policy, but it was given to him by defendant's agent solely for inspection, and the death of the insured occurred before the contract was completed by his acceptance of the policy. There was no verified plea denying the execution and delivery of the policy. The trial court permitted the defendant to introduce its evidence in support of its defense, over plaintiff's objections. The Appellate Court, as disclosed by its opinion, to which we may look for the reasons for its decision and judgment, held the proof was not admissible and should not have been admitted by the trial court, because the execution and delivery of the policy were not denied by a verified plea. That evidence was not, therefore, considered by the Appellate Court in arriving at its conclusion. This, it is urged, was erroneous, and it is claimed defendant's evidence should have been considered by the Appellate Court notwithstanding there was no verified plea, because, it is contended, plaintiff waived the objection that no verified plea was on file by offering evidence on the issue of delivery, by failing to object to defendant's testimony on that specific ground, cross-examining defendant's witnesses on the question of delivery and offering instructions on that issue, and failing to assign cross-errors in the Appellate Court upon the ruling of the trial court admitting defendant's evidence.

The objection made by plaintiff to defendant's proof was that it was immaterial, incompetent under the issues, and that what was said between defendant's agent and the insured was merged in the contract of insurance. There was no specific objection that it was incompetent because no verified plea was filed. It appears from the record that plaintiff's real objection was that such proof was inadmissiblefor the reason that what was said between defendant's agent and the insured was merged in the policy of insurance. The special ground of demurrer alleged was that the special pleas amounted to the general issue, and evidence in support of the defense set up in said special pleas, if admissible at all, would be admissible under the general issue. At no time was the objection raised that such defense could only be made under a verified plea. That specific objection does not appear to have been raised until the case reached the Appellate Court, and it was not raised there by the...