Woodbury v. United States Cas. Co.

• Decision Date: 20 June 1918
• Docket Number: 11652,Nos. 11635,11778.,s. 11635
• Citation: 120 N.E. 8,284 Ill. 227
• Parties: WOODBURY v. UNITED STATES CASUALTY CO. et al.
• Court: Illinois Supreme Court

284 Ill. 227

120 N.E. 8

WOODBURY

v.UNITED STATES CASUALTY CO. et al.

Nos. 11635, 11652, 11778.

Supreme Court of Illinois.

June 20, 1918.

Appeal from Second Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Separate suits by George Trumbull Woodbury against the United States Casualty Company, the Ocean Accident & Guaranty Corporation, Limited, and the Continental Casualty Company. The cases were consolidated for trial, and judgment entered against plaintiff in all three cases. On appeal to the Appellate Court, the judgments were reversed, certificates of importance granted, and defendants appeal. Reversed and remanded.

See, also, 198 Ill. App. 560, 205 Ill. App. 387, 403, 404.Moses, Rosenthal & Kennedy, of Chicago (Joseph W. Moses and Walter Bachrach, both of Chicago, of counsel), for appellant United States Casualty Co.

Wilkerson, Cassels & Potter, of Chicago (Ralph F. Potter and Kenneth B. Hawkins, both of Chicago, of counsel), for appellant Ocean Accident & Guaranty Corp., Limited.

M. P. Cornelius and George R. Sanderson, both of Chicago (Manton Maverick, of Chicago, of counsel), for appellant Continental Casualty Co.

Frederick A. Brown, of Chicago (Jesse J. Herr, of Chatsworth, and Clifford H. Browder, of Chicago, of counsel), for appellee.

DUNCAN, C. J.

Appellee, George Trumbull Woodbury, filed separate suits against the United States Casualty Company, the Ocean Accident & Guaranty Corporation, Limited, and the Continental Casualty Company, in the circuit court of Cook county. The pleadings and issues in all three of the cases are identical. The declarations contained two counts. The first count charged the defendants with having wrongfully obtained appellee's insurance policies by means of fraud and duress. The second was a general count in trover. The defendants each pleaded the general issue and an additional plea averring, in substance, that the plaintiff, after the time of the supposed grievances laid in the declaration and before the institution of the suit, on November 8, 1910, by his deeds of that date released to the defendants all his demands and causes of action whatsoever. The court sustained a demurrer to a third special plea of the defendants, and at the same time sustained a demurrer to two replications of appellee to appellants' second special plea. Appellee then filed a replication, in substance averring that he did not execute his deeds of release discharging the defendants from all claims for damages and from all manner of actions which he had charged against them, arising out of the matters and things alleged by appellee in his declaration, which replication was not verified by affidavit. The causes were consolidated for trial, and at the close of the plaintiff's evidence and at the close of all of the evidence, upon motions made by all of the appellants, the court instructed the jury to return verdicts of not guilty, and entered judgments against appellee in all the cases. On appeals prosecuted to the Appellate Court for the First District that court reversed the judgments and remanded the causes. All of the appellants filed a statement and stipulation, reciting that the same was made solely for the purpose of expediting the final disposition of the matters in controversy and permitting the final determination of the issues in the Supreme Court, with the sole reservation that any orders or judgments entered by the Appellate Court should be without prejudice to appellants to have the same reviewed in the Supreme Court, said statement and stipulation being to the effect that appellants had no additional evidence to offer upon a new trial; that they waived a retrial of said cause by jury, and submitted the same to the Appellate Court for such order and judgment as to law and justice might appertain; and that if, under the law and facts as shown by the record, the Appellate Court should adhere to its former opinion and refuse to affirm the judgments of the court below, the appellants were then willing that the judgments of the Appellate Court might be modified, and such judgments entered by it, final in character, as it might think proper, so as to be reviewable by the Supreme Court. Thereafter, on motion of appellee, the judgments of the Appellate Court were set aside by it, as also were the orders reversing and remanding the causes, and on July 24, 1917, the Appellate Court entered judgments in favor of appellee, the judgment against the Ocean Accident & Guaranty Corporation being for $8,294 and costs, the one against the United States Casualty Company being for $1,342.98 and costs, and the one against the Continental Casualty Company for the sum of $2,226 and costs. All the judgments recited that:

‘Upon the allegations and proofs in the record the court finds the issues in favor of George Trumbull Woodbury, the appellee.’

There was no other or formal finding of the ultimate facts by the Appellate Court, as shown by its judgments. Certificates of importance were granted by the Appellate Court, and appellants have all appealed to this court, and the causes were consolidated for hearing and disposition by this court.

The record evidence discloses that in the year 1908 and Ocean Accident & Guaranty Corporation issued to the appellee an accident insurance policy which provided, among other things, for the payment of $12,500 in case the insured lost either hand or foot solely through external, violent, and accidental means. The occupation of appellee, as stated in the policy, was that of vice president of the Columbus Safe Deposit Company, with the ordinary duties of office and traveling. In the year 1910 the Continental Casualty Company and the United States Casualty Company issued to appellee similar policies, with practically the same statements therein contained and the same provisions so far as the issues in this suit are concerned, which provided for the payment of $5,000 and $2,500, respectively, in case the insured lost either foot solely through external, violent, and accidental means. On October 1, 1910, the appellee, having moved from Chicago to Phoenix, Or., while the policies were still in force had his right foot practically shot off a few inches above the ankle through the accidental discharge of a high-power rifle loaded with a 38-caliber, soft-pointed bullet, the bullet breaking both tibia and fibia bones, cutting them entirely into two parts, and shattering the bones into fragments for some distance around the wound, thereby necessitating the amputation of the foot and lower part of the limb. It was stipulated that appellee had suffered the loss of his right foot solely through external, violent, and accidental means, that the policies were then in force and effect, and that due proofs of loss were furnished, and no question arises concerning the correctness of the amounts of the judgments if they are otherwise correct.

From the recitals in the opinions of the Appellate Court the other evidentiary facts are that at the time appellee took out the insurance he was employed by the Columbus Memorial Building as renting agent. On June 10, 1910, he went to Phoenix, Or., where his father-in-law lived, to go into the ranch business. Six or eight weeks after his arrival in Oregon he gave up the idea of going into the ranch business and went into the real estate business at Medford, Or., and was in that business at the time he was injured. About August, 1910, he wrote letters to all three of the insurance companies, informing them that he was in the real estate business, and inquired of them whether or not they considered that business more hazardous, and was informed by all of them, in substance, that they did not consider it more hazardous, and that no increase in the premium would be required. On October 1, 1910, appellee went out to a toolhouse in the rear of his home and reached up for his rifle. It got away from his hand and struck the door and dropped, muzzle down, and then fell over and was discharged, the bullet going transversely through his right leg about three inches above his ankle. He lost a great amount of blood from the wound and suffered a great deal of pain. In the first operation three inches of the bone of the leg was removed, and he was hardly from under the influence of the anesthetic when the second operation was performed, and his foot and lower part of his leg removed, and he was very much weakened in body and mind as a result of the operation. One Wisner, the adjuster for all of the appellants, visited him November 5, 1910, while so suffering from his wound, and informed him that he had come to adjust his claim, but wished to make some investigation and would be back again. The next day he came back and informed appellee that he had some suspicious evidence regarding the accident; that it was rather unusual for a man out in the country to have so much insurance, and talked to him of people going to the penitentiary when the evidence was less against them than it was against appellee. He cited the case of a man at Buffalo, N. Y., who threw his arm under a street car, had it cut off, and sued the companies, and that they sent him to the penitentiary. He cited other similar cases, and when appellee informed him that he would not settle for anything but the face value of his policies, he told appellee that the companies would bankrupt him and possibly put him in the penitentiary; that they would ruin his reputation anyway; that they had unlimited funds and the best legal talent in the country, and that it was foolish for him to attempt to fight them. On appellee informing him that he was in no condition to talk over the matter, and that there would be time enough to settle later, he informed the appellee that it was either 50 per cent. settlement on all the policies ($10,000) on the one hand or litigation on the other, with the penitentiary as the possible wind-up for him. This talk...