Metropolitan Accident Ass'n v. Froiland
43 N.E. 766
Ill.
1896
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

The principal question in this case is like the one involved in Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, and it must be controlled by that decision. Instead of using the term “taking poison,” which in that case, as used in the policy, we held to mean the voluntary taking of poison, the application in the case at bar, which was made a part of the insurance contract, contained this provision: “I agree that this insurance shall not be held to extend * * * to poison in any' way taken, administered, absorbed or inhaled.” The principal contention of appellant is, that although it is shown, and not disputed, that the death of the member was caused by poison accidentally taken,—chloral taken by mistake for distilled water,—yet there can be no recovery, because the term “poison in any way taken” must be held to include poison taken accidentally as well as poison taken intentionally. It is not contended that there is any difference, as a cause of death, between the term “poison taken” and the term “taking poison.” Indeed, the bylaws use the one term and the application uses the other. But it is insisted that the qualifying words, “in any way,” have relation to the motive of the insured in taking the poison, and embrace his involuntary as well as his voluntary action in that regard. We are of the opinion that the words “in any way” relate to the mode or manner in which the poison is taken, and not to the motive of the insured in taking it. Very nearly this precise question was so decided in Connecticut Life Ins. Co. v. Akens, 150 U. S. 468. It was there held, that in the phrase “self-destruction in any form” the words “in any form” clearly related only to the manner of killing, and that the clause was by no means synonymous in meaning with such clauses as “die by suicide, sane or insane,” or “by suicide, felonious or otherwise, sane or insane. ” In accordance with the ruling in Dunlap’s case and in Healey v. Mutual Accident Ass. 133 Ill. 556, we must hold in the case at bar that the death of the member, Froiland, having been caused by accident, is not excluded from the risks covered by the contract of insurance sued on, by reason of the exception above mentioned. Insurance contracts are to be liberally construed, so as not to defeat the indemnity which, in making the contract, it was the object to secure, unless plainly necessary from the language of the contract.

It is also contended by appellant that there should have been no recovery by appellee, under the issues and proofs, because, first, immediate notice of the member’s death was not given to appellant as required by the certificate of membership; and second, the suit was not begun within thirty days after the refusal by-appellant to entertain or to pay the claim. It is very doubtful whether the notice required by the certificate to be given immediately upon the happening of the injury applies to cases of death. When construed in connection with the by-laws it would seem to apply only to injuries not fatal. But however this may be, the notice, if any was required, was waived, as were also the proofs of- death and the by-law requiring suit to be brought within thirty days. The member died on February 27, and on the 22d day of March appellee and her attorney went to the office of the secretary and general manager of the association and asked him for forms upon which to make proper proofs of death, but the secretary told them, in substance, that the officers of the association knew of the member’s death; that it would be of no use to make the proofs, for the reason that Froiland’s death was caused by poison; that the insurance did not cover such a case, and that the claim would not be paid. It must also be taken as established by the judgments of the circuit and Appellate Courts, that appellee, as a matter of fact, had no knowledge of the provision in the by-laws requiring suits, if brought at all, to be brought within thirty days after the refusal of the association to entertain or pay the claim, and that for the purpose of ascertaining what, if any, limitation as to time was provided in the by-laws, appellee and her attorney asked appellant’s secretary, at the time and place above mentioned, for a copy of its by-laws, and when this request was refused, then inquired of him how much time appellee had in which to bring suit, and was informed that she had three months. This officer of the association was then in possession of the by-laws and had printed copies of them, and whether or not appellee had a right to obtain from the association a copy of such by-laws, she had the right to inspect them and to be informed of their contents. The secretary and manager then knew, from the conversation, that she was ignorant of the by-law requiring suit to be brought within thirty days. Whether, as matter of law, she was charged with knowledge of the by-laws or not, she was in fact ignorant of the one in question, as was then well known to this officer of the association. . While there is some conflict as to what was said, it must be taken, on this appeal, as established that she was, in effect, refused permission to inspect the by-laws, and was misled and induced to believe that she had three months in which to bring suit. However unreasonable a by-law requiring suit to be begun within thirty days from the time of the refusal by the company to pay might appear to be, we do not deem it necessary to pass upon that question; but that this by-law was waived by the wrongful acts of appellant’s secretary and manager we have no doubt. It is a familiar rule that refusal to pay a claim on the ground that the loss is not one covered by the policy is a waiver of the requirement usually contained in the policy that the prescribed proofs of the loss be furnished to the company, and that in such case suit may be maintained without furnishing such proofs. Upon the same principle we see no reason why the finding for the plaintiff of the issue made on the second replication setting up the facts above stated did not, in effect, amount to a finding that the by-law in question was waived by the association. (See Allemania Fire Ins. Co. v. Peck, 133 Ill. 220, and cases there cited.) When the issue on this replication is considered, we do not think the court erred in refusing to hold as law in the decision of the case the proposition submitted by appellant that appellee was charged with notice of and was bound by the by-laws, and that it was immaterial whether she had actual knowledge of them or not.

Counsel for appellant contend that the court erred in not sustaining their demurrers, first, to the declaration, and next, to the replication. If any error was committed in this regard it was waived by pleading over. The record shows that issues were joined on the pleadings to which demurrers had been overruled.

It is also assigned for error, and insisted on here, that the damages assessed exceed the ad damnum of the declaration, and that the judgment should be reversed for that reason. It seems that the excess of the judgment over the damages claimed in the declaration was the interest allowed which accrued after the commencement of the suit. At the conclusion of the trial the court found the issues for the plaintiff and assessed her damages at $5354, which was $354 in-excess of the amount claimed in the declaration. The defendant entered its motions for a new trial and in arrest of judgment, which motions, as entered, were overruled by the court and exceptions taken by the defendant. Exceptions were also taken to the findings of the court and to the judgment. The specific objection was not made, nor was the court’s attention called to the fact, that the damages assessed exceeded the ad damnum of the declaration. Had this been done the court would, no doubt, have limited the judgment to the amount claimed or would have allowed the plaintiff to amend her declaration. It is undoubtedly true that it was error to render judgment in excess of the amount claimed in the declaration. It has been uniformly so held by this court. But the error was a formal and technical one, that should have been pointed out to the court by the defendant below when making its objections and taking its exceptions to the action of the court. This was not done, and the error was therefore waived. This view is in substantial accord with the decision of this court in Utter v. Jaffray, 114 Ill. 470, where, although no motion for a new trial or in arrest of judgment was made and no exceptions were taken to the judgment, it was said that had any such action been taken, “stating that the finding of the damages was in excess of the ad damnum in the amended declaration, the error could have been, and no doubt would have been, corrected at once, under the statute, on such terms as the court might have deemed equitable and just.” The inference to be drawn from the language used in that case is, that such an error will be waived unless the specific objection be made in the trial court. See, also, Bowden v. Bowden, 75 Ill. 111.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.