Provident Sav. Life Assur. Soc. v. King

• Decision Date: 23 June 1905
• Citation: 216 Ill. 416,75 N.E. 166
• Parties: PROVIDENT SAV. LIFE ASSUR. SOC. v. KING.
• Court: Illinois Supreme Court

216 Ill. 416

75 N.E. 166

PROVIDENT SAV. LIFE ASSUR. SOC.

v.KING.

Supreme Court of Illinois.

June 23, 1905.

Appeal from Appellate Court, First District.

Action by Susan B. King against the Provident Savings Life Assurance Society of New York. From a judgment of the Branch Appellate Court for the First District affirming a judgment of the superior court in plaintiff's favor, defendant appeals. Affirmed.

Rehearing denied October 11, 1905.Peck, Miller & Starr and L. C. Krauthoff, for appellant.

Darrow, Masters & Wilson (Edgar L. Masters and William A. Howett, of counsel), for appellee.

CARTWRIGHT, J.

In this suit the appellee, Susan B. King, recovered a judgment in the superior court of Cook county on a policy of insurance for $5,000 issued by the appellant, the Provident Savings Life Assurance Society of New York, to her husband, Thomas E. E. King, payable to her upon his death. The Branch Appellate Court for the First District affirmed the judgment.

A jury having been waived, the issues of law and fact were submitted to the judge, Philip Stein, and upon a trial before him such issues were found for the plaintiff, and judgment was entered accordingly. An appeal was taken to the Appellate Court for the First District, and that court assigned the cause for hearing to the Branch Appellate Court, of which said Philip Stein was one of the justices. There was a preliminary motion by appellee to strike the bill of exceptions from the record while he was one of the justices, but the motion was not decided, and was reserved to the final hearing of the cause. Appellant filed its petition to set aside the order assigning the cause to the branch court and to transfer it to the Appellate Court, on the ground that Philip Stein, before whom the cause was tried in the superior court, was one of the justices of the branch court before which the cause was pending for review, and setting forth that only two justices were qualified to hear the appeal, while the Constitution and law contemplated a review by three justices, and in case of division between the two the judgment would be affirmed by operation of law, and the appellant be finally concluded as to the facts upon the decision of but one. The petition was denied, and its denial is assigned as error.

Section 11 of article 6 of the Constitution provides for the creation of Appellate Courts, to be held by judges of the circuit courts, but provides that no judge shall sit in review upon cases decided by him. By virtue of that provision of the Constitution Appellate Courts were created, consisting of three justices, but, if one of them has heard the cause, he is prohibited by the Constitution from taking part in the hearing or decision of the case upon appeal, and, if the remaining justices do not agree, the judgment or decree is affirmed by operation of law, and thereby the controverted facts are conclusively determined against the appellant. In 1897 the Branch Appellate Court for the First District was constituted, to which the Appellate Court of that district may assign cases for hearing and decision. It is manifest that the Constitution and law contemplate a review by a court consisting of three justices wherever it is possible, and in the First District there may be such a review in every case. The discretion committed to the Appellate Court should be exercised in accordance with the intent of the law and in the interest of parties, so that they may have the benefit of the judgment of three justices, and not be concluded as to the facts without a decision upon them. We see no reason, and none is suggested by counsel for appellee, why the petition of appellant should not have been allowed. But it appears that in this case appellant was not prejudiced by the denial. The motion of appellee, made while Philip Stein was one of the justices of the branch court, was finally decided in favor of appellant, and neither the motion nor the cause was decided until after he had ceased to be a member of the court on the first Monday of December, 1904. The motion and cause were decided on January 10, 1905, and the justices then composing the court were all qualified to hear and determine the appeal.

Although both parties have argued at great length the questions of fact in controversy in the superior court which have been finally determined by the Appellate Court in favor of appellee, counsel for appellant say that they rely only on certain propositions of law relating, first, to the construction of certain provisions of the policy; second, to the competency of evidence offered in the trial court; and, third, to the hearing of the cause in the branch court, which has already been passed upon. The policy was dated April 16, 1891, and in consideration of the payment of $104.40 Thomas E. E. King was insured for one year. This clause followed: ‘Said society further agrees to renew and extend this insurance upon like conditions, without medical re-examination, during each successive year of the life from date thereof, upon the payment, on or before the sixteenth day of April in each such year, of the renewal premiums in accordance with the scheduled rates, less the dividends awarded hereon.’ The policy contained a schedule of yearly renewal rates, increasing in amount progressively from year to year on each $1,000 of the insurance. King's age when the policy was issued was 48, and he was 57 when he died. Following the schedule of rates there was this clause: ‘Regarding the death fund and guaranty fund.-After deducting the expense charge, which is limited to $4 per annum on each $1,000 insured, the society agrees to divide the residue of each renewal premium received by it on this policy as follows: Such amount as shall be required for this policy's share of death losses will be appropriated as a death fund, to be used solely in settlement of death claims. The remainder thereof will be retained as a guaranty fund. The amounts so retained on account of this policy will be used towards offsetting any increase in the premium on this policy from year to year; or, provided this policy, after five full years' premiums have been paid, be terminated solely by nonpayment of any stipulated premium when due, eighty per cent of any amounts so retained but not so used will be applied to extend this insurance, or, if application be made therefor while this policy is in full force and effect, to purchase paid up insurance.’ Premiums were paid on the quarterly installment plan from the date of policy, on April 16, 1891, up to April 16, 1900, but the premium due on the latter date by the terms of the policy was not paid, and King died in October, 1900. Although the schedule rate increased yearly, the premium was increased only twice. It was $28.25 quarterly up to April 16, 1898, when it was increased to $35.31, and it was paid at that rate until another increase on April 16, 1900, to $41.25. The plaintiff testified that about April 1, 1900, she went to the office of the company in Chicago to pay the quarterly premium of $35.31, which had been the rate; that she gave a boy the money, who took it, and brought back a receipt, saying that the premium was $41.25; that she told the boy she had not money enough with her to pay, and asked why the premium was raised; that he told her she would have to come again, and see the general agent, Mr. McMullen; that she called again in about a week's time, and saw Mr. McMullen, and told him...