Peterson v. Manhattan Life Ins. Co.

• Decision Date: 07 April 1910
• Citation: 91 N.E. 466,244 Ill. 329
• Parties: PETERSON v. MANHATTAN LIFE INS. CO.
• Court: Illinois Supreme Court

244 Ill. 329

91 N.E. 466

PETERSON

v.MANHATTAN LIFE INS. CO.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 7, 1910.

Error to Appellate Court, Second District, on Error to Circuit Court, Henry County; W. H. Gest, Judge.

Action by Martin J. Peterson, executor, against the Manhattan Life Insurance Company. From a judgment of the Appellate Court (115 Ill. App. 421) affirming a judgment for defendant, plaintiff brings error. Reversed and remanded.

On October 11, 1897, Martin J. Peterson, executor of the last will and testament of Charles H. Peterson, deceased, brought an action in assumpsit in the circuit court of Henry county against the Manhattan Life Insurance Company, defendant in error, to recover the amount of a policy of insurance theretofore issued by the said company upon the life of said Charles H. Peterson, deceased. To the declaration defendant in error interposed the general issue and gave notice of special matters that it would rely upon in defense. The trial of the cause before the court without a jury resulted in the entry of a judgment against the plaintiff on March 29, 1901. Thereafter, in August, 1904, the judgment of the circuit court was affirmed by the Appellate Court for the Second District, and to review that judgment Martin J. Peterson, as executor, has brought the record to this court by writ of error sued out by him in December, 1908.

On August 9, 1895, the deceased made application in writing to the defendant in error for a policy of insurance upon his life in the sum of $10,000. At the close of the application signed by him were these words: ‘It is hereby warranted that the above statements and answers are full, complete and true in every particular, and they are offered as a consideration for the insurance applied for, which, however, shall not be forfeited by any misstatement made herein after three years from the date hereof.’

The medical examination, which was a part of the application, contained, among others, the following questions, and answers made thereto by the applicant:

‘Q. 68. Have you ever been declined or postponed by any company? State name of company. A. No.’

‘Q. 24. Have you ever had rheumatism in any form? Number of attacks, dates, duration, parts affected. State also whether there were heart complications. A. No.’

‘Q. 81. When did you last consult a physician, and for what reason? A. July, 1895; malaria.

‘Q. 82. Name and address of physician? A. W. S. Bryan.

‘Q. 83. Give the names and addresses of physicians who have attended you or whom you have consulted during the last ten years, and for what diseases. A. Has not been sick.’

These questions were printed in the printed blank form prepared by the insurance company to be used by its medical examiners in examining applicants for insurance, and the answers appeared in the handwriting of the medical examiner who examined the applicant for the company.

When the application was received by defendant in error at its New York offices, the policy was prepared and sent to W. N. Sattley, its state manager for Illinois. Before it was delivered to Peterson, however, the company wrote Sattley to hold the policy until further investigation had been made regarding the risk, stating that it had been informed that it was thought that the applicant had some lung trouble. Sattley thereupon went to Cambridge, Ill., the home of Mr. Peterson, and, after making sufficient investigation to satisfy himself that the risk was good, delivered the policy. The application was by the policy made a part of the contract of insurance. The death of the insured occurred in March, 1897, within three years from the date of the policy and after he had paid two annual premiums thereon. The cause of death was acute tuberculosis of the lungs.

It appears from the record that during the month of March, 1895, the deceased made application for membership in the Order of Modern Woodmen of America and for benefits in that order in the sum of $3,000; that said application was rejected by the head physician of said order, and notice of his rejection was sent to Peterson by said order five months before he signed the application for the policy of insurance here in controversy; that in June, 1894, he was troubled with muscular rheumatism and consulted a physician in reference thereto, who prescribed for him. In his application for membership in the Modern Woodmen he was asked the following questions and gave the following answers: ‘Have you ever had rheumatism? A. Yes. If so, give number, dates and duration of attacks. A. One of thirty days.’

A number of propositions of law were submitted to the court by both the plaintiff and defendant in error, some of which were refused and others held. Errors and cross-errors assigned question the action of the court in passing on various of these propositions.Charles E. Sturtz and William C. Ewan, for plaintiff in error.

Peckham, Packard, Ap Madoc & Walsh, for defendant in error.

PER CURIAM.

When the judgment was entered in the Appellate Court, plaintiff in error, by the statute then in force, had five years in which to sue out a writ of error from this court. On July 1, 1907, section 117 of chapter 110, Hurd's Rev. St. 1908, became effective. By that section the time within which a writ of error might be sued out was reduced from five years to three years. The writ herein was sued out more than three years but less than five years after the date of the judgment of the Appellate Court. Defendant in error has not pleaded the statute nor moved to dismiss the writ, but insists by its brief that the three-year statute applies, and states that it entertains the hope that this court will decide, on its own motion, that it has no jurisdiction. This defense to the writ can only be interposed by plea. Burnap v. Wight, 14 Ill. 303;Hauger v. Gage, 168 Ill. 365, 48 N. E. 142. When not so interposed it will receive no consideration. In the case of International Bank v. Jenkins, 104 Ill. 143, it was decided that the bar of the statute of limitations to a writ of error may be presented by a motion to dismiss as well as by a plea, where the writ appears on the face of the record to be barred and nothing is alleged to remove the bar. That decision is erroneous in principle and out of harmony with the decisions of the court before and since. The case of Henry County v. Winnebago Swamp Drainage Co., 52 Ill. 454, is cited in support of the doctrine. That, however, was a chancery case, as are all those in which it has been held that the defense of the statute of limitations may be made by demurrer. In equity, where it appears on the face of the bill that the cause of action is barred by laches or the statute of limitations,the defect may be reached by demurrer to the bill. It is otherwise at common law. Even where a declaration shows, on its face, that the limitation prescribed by the statute has expired, a demurrer will not lie, because the plaintiff would thereby be prevented from pleading the exception to the statute which would prevent the bar. Wall v. Chesapeake & Ohio Railroad Co., 200 Ill. 66, 65 N. E. 632;Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895. The writ of error is a common-law writ. The limitation of time for bringing it was 20 years; but, even though brought afterward, it would not be quashed on motion, because this would deprive the party of the benefit of replying the exceptions in the statute. 2 Tidd's Pr. 1141. The defendant in error could avail itself of the defense only by plea. The court cannot judicially take notice of it, as the limitation of time is no objection to the jurisdiction of the court. Brooks v. Norris, 11 How. 204, 13 L. Ed. 665. The assignment of errors is the declaration of the plaintiff in error. If the defendant in error wanted to have the benefit of the statute of limitations, it should have filed a plea setting it up, though if the plea had been found against it a reversal would necessarily have followed. Austin v. Bainter, 40 Ill. 82;Mahony v. Mahony, 139 Ill. 14, 28 N. E. 915;Thornton v. Houtze, 91 Ill. 199.

The sixty-eighth question contained in the medical examination was: ‘Have you ever been declined or postponed by any company? State name of company.’ The answer was, ‘No.’ It appears by the undisputed evidence that the deceased had made an application for membership and benefits in the Modern Woodmen of America in March, 1895, which had been rejected, as the deceased knew at the time he made application for insurance to defendant in error.

The proposition of law No. 11, submitted by defendant in error and held by the trial court, was to the effect that the Modern Woodmen of America is a life insurance company, and that if the deceased made application for membership and benefits in the Modern Woodmen of America, which application was rejected, then the plaintiff in error could not recover in this case because deceased answered ‘No’ to the sixty-eighth interrogatory hereinabove set out.

The court refused the proposition of law No. 8, submitted by plaintiff in error, which was to the effect that proof that the application of the deceased to the Modern Woodmen of America had been rejected did not show a breach of the warranty evidenced by question 68 and the answer thereto. It is urged by plaintiff in error that the trial court erred in holding the eleventh and in refusing the eighth propositions.

It is to be observed, in the first instance, that question 68, standing alone, is of doubtful significance. It does not appear whether it referred to a banking company, a life insurance company, a fire insurance company, or a company of some other kind, and it does not appear to what sort of a proposition or offer of the deceased it had reference. There is no other question in the examination, so far as we are able to perceive, that pertains in any degree to any previous application for life insurance or for membership in a fraternal beneficiary society which could aid...