Treat v. Merchants' Life Ass'n

• Decision Date: 25 October 1902
• Citation: 64 N.E. 992,198 Ill. 431
• Parties: TREAT et al. v. MERCHANTS' LIFE ASS'N.
• Court: Illinois Supreme Court

198 Ill. 431

64 N.E. 992

TREAT et al.

v.MERCHANTS' LIFE ASS'N.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Action by Harry W. Treat and others against the Merchants' Life Association. From a judgment of the appellate court (98 Ill. App. 59) reversing a judgment of the superior court in favor of plaintiffs, plaintiffs appeal. Reversed.John S. Cooper, for appellants.

Frank P. Blair, for appellee.

This is an action of assumpsit, brought by the appellants in the superior court of Cook county to recover upon an insurance policy for $5,000 issued by the appellee upon the life of Robert A. Helliwell in their favor, as copartners of said Helliwell. The declaration consists of two special and the appropriate common counts, to which was interposed a plea of the general issue, and it was stipulated that the plaintiffs might introduce under the declaration filed any evidence which could be properly introduced under a declaration properly drawn, and that the defendant might introduce under the general issue any defense which it could introduce were such defense properly pleaded; also that the plaintiffs, without the introduction of any evidence, were entitled to a verdict for $6,174.50, and that it devolved upon the defendant to prove any sufficient defense, in whole or in part, to avoid such verdict. The defendant was given the open and close, and the plaintiffs introduced no evidence, but at the close of the defendant's evidence moved the court to instruct the jury to return a verdict in their favor for the amount stated to be due them in said stipulation, unless a sufficient defense was established. The court allowed said motion, and instructed the jury to return a verdict in favor of the plaintiffs for $6,174.50, and rendered judgment thereon, and the defendant perfected an appeal to the appellate court for the First district, which court reversed said judgment without remanding the cause, and made a special finding of fact as follows: ‘The court * * * finds that the insurance contract upon which this suit was brought contains the provision that no action at law or suit in equity shall be maintained or recovery had on the policy issued unless such action or suit be commenced within one year from the date of the death of the assured, and that this suit was not commenced until after the expiration of more than one year after the death of the assured.’ The evidence tended to show that on the 14th day of August, 1895, deceased made application for the policy in suit at the office of Heliwell, Treat & Co., in the Stock Exchange building, in Chicago, to one Stelling, agent of appellee; that the policy was delivered to Helliwell on August 16, 1895. The application showed that Helliwell already had $33,000 life insurance. The assured was found dead in the barn in the rear of his house at Oak Park, Ill., on the evening of December 14, 1895. Assured came to his death by a pistol bullet from a 32-caliber pistol. The bullet entered on the right side of his head, penetrating a little above the level of the eyes, and in the hair. There were powder marks under the skin around the wound. The shot entered on a line at right angles with the side of the head. The first witness who saw deceased after death was Edward W. Cross. Afterwards Cross found a 32-caliber Smith & Wesson pistol behind some cases some 10 feet from the body, the place having been pointed out to him by the daughter of the deceased. The pistol belonged to deceased. It had been freshly discharged. Helliwell was insolvent, and there were unsatisfied judgments against him in Cook county for a considerable amount. By the application Helliwell agreed that the policy should be void (save as to share in actual reserve) in the event ‘I commit suicide, whether sane or insane,’ and ‘I also agree that no action of law or suit in equity shall be maintained or recovery had on said policy * * * unless such action or suit be commenced within one year from the date of my death.’ The application was referred to in the policy, and expressly made part of the contract of insurance. Suit was filed in the superior court of Cook county on August 6, 1897, more than one year after the death of the assured.

HAND, J. (after stating the facts).

It is first contended that the appellate court erred in...