69 Ill. App. 649 | Ill. App. Ct. | 1897
delivered the opinion op the Court.
This is an action upon a policy of life insurance issued by the appellant upon the life of John W. E. Quandt, who was the son of the appellee.
There is but one question in the case which touches the real merits.
John was between seventeen and eighteen years of age, and was examined by a physician for the appellant about three weeks before the policy was issued. He was then in good health, and the fair inference from the evidence is that the physician then wrote an application for insurance on the life of the boy, payable in case of his death to the appellee.
The appellant is a Hew York corporation, and the course of business was that applications for insurance were sent to the appellant there, which, if it accepted the risk, sent the policy to its “ superintendent ” here. Under him was an agent who solicited insurance, delivered policies, and collected premiums. In accordance with the usual course of business, that agent carried the policy sued upon to the appellee, received from her the premium, and delivered to her the policy.
The boy was then sick, and she so told the agent, but he left the policy and took the premium.
There is nothing in the case to excite suspicion that there was then any apprehension of danger, though a physician had been called to attend the boy two or three times, and in five days thereafter he died.
Whether insurance is life or fire does not affect the extent to which a company is bound by the conduct of its agents. Mutual Life Ins. Co. v. Amerman, 119 Ill. 329.
In N. E. Fire & M. Ins. Co. v. Schettler, 38 Ill. 166, and in Ætna Ins. Co. v. Maguire, 51 Ill. 342, may be found some very vigorous and instructive language upon that branch of the law.
The only agent of the appellant with whom appellee had any actual dealing was the one who delivered to her the policy and received from her the premium. With him she had like dealing on a policy on the life of her husband. She could not read English, and had no reason to doubt the extent of his authority. We regard his knowledge of the health of the boy as estopping the appellant to insist upon the language of the policy relieving the company from obligation unless at the date of the policy the boy'was “in sound health.” She acted in good faith; if the agent was too eager for business she had no notice of it.
The objection now made that she had no insurable interest in the life of her son—if ever available—comes too late. The record does not show that in terms it was specifically alluded to below. It was not among the reasons upon which a new trial was asked, nor is it here assigned as error. Hafner v. Herron, 60 Ill. App. 592; Nat. Bk. Ill. v. Baker, 58 Ill. App. 343; Opaque Cloth Shade Co. v. Veight, 161 Ill. 337.
And she has such interest. May on Ins., Sec. 107.
That in the application she was named as the payee of the policy, is very vaguely proved by the testimony of the appellee; but the application went into the possession of the appellant, and was made the basis of some pleás by it.
The action was notice to the appellant to produce the application. Continental Life Ins. Co. v. Rogers, 19 Ill. App. 580.
When counsel for appellant said on the trial that it was not in his possession, the appellee was entitled to give secondary evidence of it, tvhich evidence the appellant might easily have refuted if it was not true. The evidence so given became strong by the absence of any contradiction. P., Ft. W. & C. Ry. v. Callaghan, 50 Ill. App. 676.
If the illness of the boy when the policy was delivered be not a just defense, it is' inequitable for the appellant to attempt any other.
The judgment is affirmed.
