Weisguth v. Supreme Tribe of Ben Hur
| Decision Date | 20 April 1916 |
| Docket Number | No. 10321.,10321. |
| Citation | 112 N.E. 350,272 Ill. 541 |
| Parties | WEISGUTH v. SUPREME TRIBE OF BEN HUR. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, Fourth District, on Appeal from City Court of East St. Louis; Robt. H. Flannigan, Judge.
Action by Josephine Weisguth against the Supreme Tribe of Ben Hur. To review a judgment of the Appellate Court affirming the judgment of the city court for plaintiff, defendant brings certiorari. Affirmed.C. E. Pope, of East St. Louis, for plaintiff in error.
Dan'l McGlynn, of East St. Louis, for defendant in error.
The defendant in error, Josephine Weisguth, was the beneficiary in a benefit certificate issued by plaintiff in error, the Supreme Tribe of Ben Hur, to Emma Mansfield, a sister of defendant in error, on September 25, 1911. Upon the death of Emma Mansfield, which occurred November 27, 1911, from acute Bright's disease, plaintiff in error refused to pay the amount of the certificate ($1,000) to defendant in error, and she thereupon brought suit in the city court of East St. Louis. Upon the first trial of the cause, at the May term, 1913, of the city court, at the close of defendant in error's evidence and to prevent the giving of a peremptory instruction directing the jury to find for plaintiff in error, defendant in error made a motion for a nonsuit, and the suit was dismissed. Thereafter, during that term of court, upon motion of defendant in error, the cause was reinstated, and was again tried at the September term, 1913, when a verdict was rendered for defendant in error. A new trial was granted, and the case was tried the third time at the March term, 1914, when a verdict was returned for the defendant in error, and judgment rendered thereon for $1,115.64. This judgment was affirmed by the Appellate Court for the Fourth District, and the record has been brought to this court for further review by a writ of certiorari.
The first ground urged for reversal is that the court erred in setting aside the order of dismissal entered upon the motion for voluntary nonsuit and in reinstating the cause. The record and the bill of exceptions contain the motion to set aside the order of dismissal and to reinstate the cause. Two grounds were assigned in support of the motion: (1) That the court admitted improper evidence before the nonsuit was taken; and (2) that at the time the motion for nonsuit was made defendant in error was not aware of a clause in the by-laws of plaintiff in error, requiring the action to be brought on the certificate within one year from the death of the member. In involuntary nonsuits the court may, in its discretion, set aside the order of dismissal and reinstate the cause. In case of a voluntary nonsuit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause, unless at the time the nonsuit is taken leave is given the plaintiff to move to set it aside. Barnes v. Barber, 1 Gilman, 401;Lombard v. Cheever, 3 Gilman, 469. The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit, he must be held to have anticipated the effect and necessary results of this action, and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a nonsuit, his only recourse is to begin his action anew.
Plaintiff in error, however, has forfeited its right to complain of this action of the court. After the cause was reinstated it appeared in two trials in the city court and contested the case on the merits. By so doing it conferred upon the court the power to proceed and waived its right to object to the reinstatement of the cause. Herrington v. McCollum, 73 Ill. 476;Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 75 N. E. 427. As we said in Herrington v. McCollum, supra:
The sole defense made in the trial court was that the answers of the deceased to the questions propounded by the medical examiner on her application for the benefit certificate, which application was expressly made a part of the contract, were warranties, and that certain of such answers were untrue. The application was, in part, as follows:
‘I do hereby agree and warrant as follows: (1) That the statements and answers contained in this application and medical examination are full, complete and true and were read by me before attaching my signature hereto, and I hereby agree that these statements and warranties, together with those hereinafter made to the examining physician in this application, and the laws, rules and regulations of the Supreme Tribe of Ben Hur now in force and which may be hereafter adopted, shall form the basis of this contract for beneficial membership; * * * (3) that any untrue or fraudulent answers made by me in this application * * * shall vitiate my beneficial certificate and forfeit all payments made thereon.’
By the terms of the certificate plaintiff in error agreed to pay the beneficiary the sum of $1,000 on the death of the member prior to her sixtieth birthday, ‘provided that said application for membership and said medical examination are absolutely and strictly true as written.’
The questions which it is claimed were falsely answered, together with the answers thereto, are as follows:
‘Have you had or been afflicted since childhood with any of the following complaints, diseases or symptoms: * * *
‘Dropsy?—No. * * *
‘Palpitation of the heart?—No. * * *
‘Swelling of feet, hands, glands or eyelids?—No. * * *
‘If any of the above diseases have occurred, state full particulars, giving dates, severity, duration, nature, number of attacks and whether you have fully recovered. . . .
‘How long since you consulted or were attended by a physician?—Five years.
‘State name and address of such physician.—Dr. Fairbrother, East St. Louis, Illinois. * * *
‘Have you had any severe illness or injury not mentioned above?—No.’
The uncontradicted proof on the trial disclosed that during the five years next preceding the making of the application Mrs. Mansfield had been treated by two physicians besides Dr. Fairbrother. One of these physicians testified that he found Mrs. Mansfield suffering from a tumor of the womb and a fatty heart; that from her waist down she had a dropsical condition of the hips and legs; that to relieve the excessive distention of the legs he ‘tapped’ them; that the cause of the dropsical condition was a general breaking down of the whole system; that if she had Bright's disease at that time he did not know it. He treated her about 10 days in June, 1910, during which time she was in a hospital. The other physician testified that he had treated her in 1909 for liver trouble; that in July, 1910, he treated her for weakness of the cardiac muscles and failing circulation; that at that time the blood and other fluids had accumulated in the lower parts of her body, producing oedema, or, as it is ordinarily called, dropsy. This treatment extended over a period of about 15 days. It is conceded by defendant in error that this was the condition of Mrs. Mansfield at the time testified to by these two physicians.
Defendant in error and a daughter of Mrs. Mansfield testified on the trial that the medical examiner for plaintiff in error who examined Mrs. Mansfield filled in the answers to the interrogatories above set out; that at the time of this examination Mrs. Mansfield disclosed to the medical examiner all the facts testified to by these two physicians, and told him fully as to her condition at these times and of the treatment she had received, and that with this information the medical examiner wrote down the responses contained in the application for membership. The medical examiner,called as a witness by plaintiff in error, denied that he had been given this information, and denied that the daughter of Mrs. Mansfield was present at the time the examination was made. The jury found against plaintiff in error on the facts, and the court rendered judgment upon the verdict. This judgment having been affirmed by the Appellate Court, all questions of fact have been conclusively settled, and we are not permitted to weigh the evidence or to question the finding of the trial or Appellate Court as to the facts.
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