146 Ill. App. 282 | Ill. App. Ct. | 1909
délivered the opinion of the court.
The complaint made by defendant of the judgment appealed from in this cause is two-fold:
First: It is claimed that as to the first policy sued on, no right whatever was_shown in the plaintiff, and that therefore it should have been excluded from evidence as immaterial. Of course also, if the plaintiff had no right to recover on it because of a want of connection with it or title in it, the instruction given by the trial judge proprio motu was incorrect, for that instruction stated contingencies on which he was entitled to a verdict.
The other contention of the defendant is that the evidence showed that the policies had never become effective. By their terms (that is by the terms which are a part of the conditions endorsed on them, which the body or face of the policy above the signature provides are made part of the contract as fully as though on said face recited) they were to be “void if the insured, before its date, had been * * * attended by a physician for any serious disease or complaint, or had before said date any pulmonary disease,” and the evidence showed both these conditions. The instruction of the trial court was therefore erroneous.
We are constrained to hold both these contentions of the defendant well taken and to reverse this judgment.
The answer of the plaintiff to the first is, that it is conceded that the application for the first policy named the plaintiff as beneficiary, and that no objection having been made in the court below to the plaintiff’s right to sue on the policy, the defendant ought not to be allowed in this court to raise this objection to the judgment.
The plaintiff’s claim in this regard is broader, we think, than the record warrants. The objection made to the offer of the policy, that it was immaterial to the issues in the case, could hardly have referred to anything else than the claim that it was not a contract in favor of the plaintiff. At all events, we can see no other ground for it, and the argument that plaintiff’s counsel’s own statement, although apparently aequiesced in by defendant, that “in the application for said policy the plaintiff is named as beneficiary,” is not tantamount, as argued, to “an express and open admission that appellee was the beneficiary under the policy * * * and as such had the right to sue.”
It is quite conceivable that in many cases the relation between application and policy might be such that such a naming of a beneficiary in the application would be read into the policy and be sufficient to show a title in the person named to sue on said policy; but we have here no application in evidence—merely the statement that in “the application” for the policy (no further described) the plaintiff is named as beneficiary. Turning to the policy we find the only allusion to the application, on either face or back of the same, to be this, among the conditions: “This policy is issued upon an application which omits the warranty usually contained in applications and contains the entire agreement between the Company and the insured and the holder and owner thereof.” This appears to imply, at the very least, a repudiation of the application as affecting the policy. At all events, it emphatically declares the whole contract must be found between, the four corners of the paper constituting the policy.
Within those four corners there is no right given to the plaintiff to recover on the policy in any event, and no protection secured to the Company in paying him unless he proves that he is “equitably entitled” to the proceeds, “by reason of having incurred expense on behalf of the insured or for her burial.” The right to sue on such a contract does not reside in the husband as husband. It belongs only to the personal representative of the deceased. Massachusetts M. L. Ins. Co. v. Robinson, 98 Ill. 324; U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305; Bailey v. N. Eng. Mut. Life Ins. Co., 114 Mass. 177.
The answer of the plaintiff to the second contention of the defendant is that the doctrine of the court’s instruction is correct—that the question is merely whether the deceased committed fraud by a misrepresentation of her condition, made knowingly. If “she honestly believed she was stating nothing but the truth when the insurance policies were issued by the defendant,” then the plaintiff could recover, the court ruled. We are unable to agree with this. There is no application in evidence in this case, nor evidence of what the deceased claimed. It would be a serious question whether we could hold that the verdict was not against the clear weight of the evidence if the theory of the instruction of the court were correct. The certificates and testimony of the doctors make it hard to believe that in February, 1901, and in December, 1901, Mrs. Heubner did not know that she had been previously “attended for a serious disease,” or that in good faith she could have said that she had no pulmonary disease. But there is no evidence that she so represented. The contract merely declares itself nonreffective and void in certain contingencies, and these contingencies, the evidence strongly tended to show—indeed did show without serious question—existed.
Accepting the policy with these conditions was equivalent to a warranty that the conditions mentioned did not exist when the policy was issued. Stout v. City F. Ins. Co., 12 Iowa, 371.
If the deceased warranted that she had not been attended by a physician for a serious complaint, nor had suffered from a pulmonary disease, then her good faith in making the statement which constituted the warranty was of no importance. The only test of the effect was its accuracy. In this view the instruction of the court was erroneous.
The Supreme Court has in Spence v. The Central Accident Insurance Company, 236 Ill. 444, gone farther than ever before in declining to hold representations, warranties, if it could be avoided. In that case, however, the court thus defines a warranty, quoting approvingly from Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 123: “A warranty is in the nature of a condition precedent. It must appear on the face of policy, or, if on another part of it or on a paper physically attached, it must appear that the statements were intended to form a part of the policy, or if on another paper, they must be so referred to in the policy as clearly to indicate that the parties intended them to form a part of it. ’ ’
There can be no doubt of the intention of the parties in this case to make “the conditions precedent” in the policy a part of it. They are manifestly so.
The opinion in Spence v. Insurance Co. also says of the- effect of a “warranty,” which as noted it says is “in the nature of a condition precedent”: “A warranty enters into and is a part of the contract and must be literally true in order to entitle a party to recover upon a policy of insurance.”
The plaintiff showed no right to sue on the first policy, and the instruction of the trial judge was erroneous. Therefore the judgment is reversed and the cause remanded to the Superior Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
