Muller v. Equitable Life Assur. Soc. of the United States
Decision Date | 05 February 1938 |
Docket Number | Gen. No. 39141. |
Citation | 293 Ill.App. 555,13 N.E.2d 96 |
Parties | MULLER ET AL. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Clyde H. Thompson, Judge.
Action by Lillian A. Muller and others against the Equitable Life Assurance Society of the United States on a policy of life insurance, wherein the jury returned a verdict for defendant. Order granting a new trial, and defendant appeals.
Reversed and remanded, with directions. Mayer, Meyer, Austrian & Platt, of Chicago (Frederic Burnham, of Chicago, of counsel), for appellant.
Ratner, Miller & Ratner, of Chicago, for appellee Lillian A. Muller.
Charles F. Fitzgerald, of Chicago, for appellee Edith Medberry, as guardian.
Nelson G. Wettling, of Chicago (Owen Rall, of Chicago, of counsel), for appellees Milton R. and Edith M. Muller.
Plaintiffs, as beneficiaries in a policy issued by defendant upon the life of Harry Muller, brought suit to recover $30,000 and interest by reason of the accidental death of the insured; upon trial the jury returned a verdict for defendant; on plaintiffs' motion the court set this aside and ordered a new trial; defendant filed in this court a petition asking leave to appeal from this order, which was allowed; additional briefs have been filed, and the propriety of the order granting a new trial is now before us.
The sole reason moving the trial court to grant a new trial was apparently a feeling on his part that there had been some misunderstanding between counsel and court in a conference held in chambers where there was a discussion as to the instructions to be given.
The defense was that the insurance policy had lapsed. The defendant had sent to the insured a “lapse notice” suggesting that the insured request a reinstatement of the policy and that if the premium was forwarded with a signed request for reinstatement, the company would reinstate the policy, “provided the evidence of insurability is satisfactory to the Society; Otherwise the remittance will be promptly returned.” A check accompanied by a request for reinstatement (not signed by the insured) was received by defendant, but subsequently, on learning that the insured had been seriously injured, it issued its check as a refund of the amount of the check inclosed in the request for reinstatement.
Plaintiffs' counsel took the position in conference in chambers of the trial judge that the provision in the “lapse notice” that “the remittance will be promptly returned” meant the identical check sent to defendant, and that its check refunding this was not the remittance provided for in this lapse notice. The court indicated disagreement with this. Plaintiffs' counsel then claimed that the meaning of the word “remittance” was for the jury to determine. Counsel for defendant opposed this, contending it was for the court to construe the meaning of the writing. The court agreed with this, but apparently stated that it would permit plaintiffs' counsel to argue the point to the jury. Defendant's counsel then said he would ask the court to instruct the jury that defendant was not required to return the identical check received by it. Plaintiffs' counsel suggested that defendant's counsel write out the instruction he wanted, “while we are arguing.” Defendant's counsel thereupon wrote out in longhand the instruction he wanted, and sent it to his office to be typewritten. Plaintiffs' counsel proceeded then to make his opening argument to the jury, and argued that by not returning the identical check it had received, defendant had accepted it in payment of the balance of premium due, and therefore could not question any statements as to insurability of Muller. There is some dispute as to whether defendant's counsel, when he received the typed instruction, handed a copy to plaintiffs' counsel. The court gave defendant's instruction telling the jury that defendant was not required to send back the identical check received by it.
Plaintiffs on their motion for a new trial argue that defendant's counsel was guilty of misconduct in not handing a copy of the instruction to plaintiffs' counsel. The evidence as to this is about evenly balanced; but in any event there was no rule at the time this case was tried requiring either counsel to submit its instructions to the other side. Plaintiff's counsel also assert that the court misled them by saying they might argue the meaning of the word “remittance” to the jury, but subsequently instructed the jury contrary to the meaning argued by plaintiffs' counsel. Under section 67 of the Civil Practice Act, Smith-Hurd Ill.Stats. c. 110, § 191, as it is now it is not the duty of the trial judge to inform counsel on either side of the instructions he proposes to give. We can conceive of no circumstances that would prevent a trial judge from giving a proper and necessary instruction to a jury. He was not required to discuss the instructions with counsel before he gave them and his attitude at the time indicated some uncertainty in his mind, although inclined to agree with defendant's contention. A trial judge, even after he has read an instruction to the jury, may change his mind and withdraw it. Chicago & E. I. R. Co. v. Zapp, 110 Ill.App. 553, affirmed in 209 Ill. 339, 70 N.E. 623. We see no reason why a trial judge should be bound by a more or less informal and indefinite statement made in conference in chambers.
We are of the opinion the reasons stated by the trial judge for granting a new trial are inadequate and should not have prevailed. The court indicated that in his opinion the verdict was right. Under such circumstances, a new trial should be granted only for grave errors which, had they not occurred, would have resulted in a different verdict. The trial court should not have set aside a proper verdict because of the unimportant matters of which plaintiffs complained.
Moreover, we are of the opinion that the record shows there was no liability of defendant on the policy involved, and that defendant's motion for a directed verdict in its favor should have been allowed.
There is virtually no dispute as to the facts. The policy sued upon was dated November 16, 1932, and quarterly premiums of $155.40 each were due on the 15th of February, May, August, and November in each year, with 31 days grace; it contained a provision that after a lapse for nonpayment of premiums the policy might be reinstated upon payment of all overdue premiums with interest, and production of evidence of insurability satisfactory to defendant.
The premium falling due November 16, 1933, was not paid, and on or about December 21, 1933, the insured submitted to defendant an application for reinstatement which contained a declaration of his good health, and an application for an extension of time to January 16, 1934, to pay the full premium due November 16, 1933; at the same time the insured gave defendant $62.16 which was 40 per cent. of the premium, which was to be retained as compensation for the extension if the balance of the premium due November 16, 1933, was not paid on the extended date, namely January 16, 1934. Defendant reinstated the policy and granted the extension to January 16, 1934.
January 5, 1934, defendant sent the insured a reminder that January 16, 1934, was the last day for payment of the balance of premium due November 16, 1933, and that no further extension of time for...
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