Western & Southern Life Ins. Co. v. Brueggeman

• Decision Date: 19 May 1944
• Docket Number: Gen. No. 43029.
• Citation: 323 Ill.App. 173,55 N.E.2d 719
• Parties: WESTERN & SOUTHERN LIFE INS. CO. v. BRUEGGEMAN.
• Court: United States Appellate Court of Illinois

323 Ill.App. 173

55 N.E.2d 719

WESTERN & SOUTHERN LIFE INS. CO.

v.BRUEGGEMAN.

Gen. No. 43029.

Appellate Court of Illinois, Fourth District.

May 19, 1944.

Appeal from Circuit Court, Randolph County; Alfred D. Riess, Judge.

Action by the Western & Southern Life Insurance Company against Anna M. Triantos Brueggeman to recover part of the money paid under a life policy. From a judgment for defendant, plaintiff appeals.

Affirmed. Fordyce, White, Mayne, Williams & Hartman, of St. Louis, and J. Fred Gilster, of Chester, for appellant.

William G. Juergens, of Chester, for appellee.

CULBERTSON, Presiding Justice.

This is an appeal from a judgment against plaintiff-appellant, the Western & Southern Life Insurance Company (hereinafter called the plaintiff), and in favor of the defendant-respondent, Anna M. Triantos Brueggeman (hereinafter called defendant), in bar of suit and for costs in a case which was tried before the Court, without the intervention of a jury.

It appears from the evidence in this case that on May 18, 1939, the plaintiff herein issued a policy of insurance on the life of Bernard B. Triantos, in the sum of $1,000, and which said policy contained a Military and Naval Exemption Clause, reading as follows: “In the event the insured dies while in Military or Naval Service in time of war, the liability of the company shall be limited to the amount of the premiums paid on this policy, with interest thereon at the rate of three percentum per annum.” The defendant herein was designated as the beneficiary under said policy.

It further appears from the evidence that on June 9, 1942, the insured died of a self-inflicted gunshot wound while he was a private in the United States Army. Proof of death was sent to the Insurance Company, who in turn sent the defendant the necessary blanks to be completed in connection with the death claim. The plaintiff secured the death certificate from the War Department and thereafter notified the defendant that her claim had been approved for payment and sent her its draft in the amount of $1012.68, in full settlement of the claim. This draft was cashed by the defendant, and plaintiff now contends that it overpaid defendant in the amount of $950.12, and is demanding back this amount. Plaintiff contends that it paid defendant the wrong amount, through inadvertence, and after calling on the beneficiary and requesting her to return the amount they contend is an overpayment, and upon her refusal so to do, suit was instituted to recover said amount from defendant. The theory of plaintiff's complaint may be fairly said to be that, they contend that the payment was made through inadvertence and that for that reason they are entitled to have the overpayment of $950.12 returned.

To the complaint filed in this case the defendant filed an answer, in which she sets up two affirmative defenses: First, she alleges that the plaintiff, with full knowledge of all the facts and circumstances of the case, without fraud, misrepresentation, or mistake of fact, and without compulsion, voluntarily and of its own free will, paid to defendant the sum provided for in said policy, and that the same could not now be recovered; second, the second affirmative defense asserted is that the plaintiff, with full knowlege of all the facts and circumstances of the case, voluntarily issued its draft, payable to the defendant, for the face amount of said policy, thereby waiving the condition of the policy limiting its liability to a return of the premiums paid if the insured died while in Military Service in time of war.

In support of plaintiff's contention that the payment was made through inadvertence, the deposition of Anna Boehman was read in evidence, and from her deposition it appears that she was an employee of the plaintiff company in the capacity of clerk in the Claim Department, and that she had been in such employment since June 13, 1921. She testified as to the various steps taken when a claim is received, and until it is finally paid. She testified she was familiar with the Military and Naval Service Exemption Clause contained in the policy in question in this case; that she handled claims under policies with a war clause and claims under policies without a war clause; and that both types of claims were handled in the same way, except that on claims payable under the war clause, the requisition is issued only for the amount of premiums paid on the policy, with interest at three per cent., as provided in the war clause. This witness testified that she, personally, handled the claim which was based on the policy involved in this litigation, and the draft was requested to be issued for $1012.68, to the defendant. This witness testified that when this claim was received at the home office it did not include a death certificate as part of the proofs, and that the plaintiff company later obtained said death certificate by writing direct to the War Department for it, and that same was received by the plaintiff company from the War Department. She further testified that when the death certificate was received, she made up the claim and inadvertently approved it for payment of the full face amount, instead of for the total amount of premiums paid...