121 Ill. App. 257 | Ill. App. Ct. | 1905
Lead Opinion
delivered the opinion of the court.
The policy in controversy seems to have been contested upon the alleged ground that the deceased was suffering from a disease of the kidneys when the policy was issued, and concealed the fact from appellant. There is no direct proof that such was the case and there is conflict in the opinions of the medical witness who testified in reference to that matter. The evidence as to the alleged assurance to appellee from appellant’s cashier that the policy had been turned in, that it was all right and to go ahead with the burial is also 'conflicting. The finding of the jury, there being conflict in the evidence, must be deemed conclusive in this instance in favor of appellee upon the controverted questions of fact.
It is contended in behalf of appellant that the provision of the policy to the effect that the company may pay the amount due thereon to any person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured or for his or her burial, is permissive only and if the company fails to exercise such option, then all rights inure to the benefit of the estate of the deceased, and appellee has acquired no rights thereunder. See Lewis v. Metropolitan Life Ins. Co., 178 Mass. 52-54.
We are of opinion, however, that if, as the jury seem to have found, appellant by its authorized officer promised to pay appellee the expense of the burial of the assured, such promise may be deemed an election on the part of the com-pany to pay that expense to appellee as the person equitably entitled to be so paid by reason of having incurred the expense of burial, and that having led appellee to incur such expense on the faith of that promise, appellant must be deemed es-topped from now denying that it exercised the option given it by the policy and agreed to make such payment.
The judgment must be affirmed.
Affirmed.
Rehearing
In a petition for rehearing appellant seems to suppose that we intend to hold that any cashier in any^ of appellant’s branch offices is entitled to act for the company and exercise the option contained in the policy. This.is a misapprehension. There is evidence that appellee had been in the habit of relying on statements made by the cashier referred to, .under similar circumstances in previous cases, that he had acted upon the information so given him by said cashier and subsequently received the money, and that this had been the usual course of dealing. The question of fact must be regarded as settled by the verdict, and upon such state of facts appellant should, ,we think, he deemed estopped to deny the authority of the cashier in this particular instance.