39 Ill. App. 509 | Ill. App. Ct. | 1891
This was an action of assumpsit upon a certificate of membership in the defendant company.
A demurrer to the declaration was overruled and the defendant not answering further, judgment was rendered for §5,000.
The first point made is, that by the terms of the certificate there was not an absolute promise to pay §5,000, or any definite amount, but to pay the sum of §2 for each member of division A of the association, which sum was not to exceed $5,000. The demurrer was general, no specific objection being pointed out. The declaration set out the certificate in Iubo verba and averred the death of the assured, etc., and alleged that by reason of the premises, the plaintiff was entitled to receive said sum of $5,000, but did not allege that division A contained any particular number of members. The objection was one that might have been obviated by amendment.
Whether such a defect might have been reached by special demurrer only at the common law, we are of opinion that under the operation of Sec. 24 of the Practice Act, and in analogy to the liberal policy there indicated, itcould not be reached by general demurrer, and that a defendant seeking to raise a point so easily met by amendment should be required to specifically state it. That provision of the Practice Act has worked a radical change in our procedure and has enlarged the scope of matters which should be specially set-out as ground of demurrer.
It is said in the brief of appellee that upon the argument of the demurrer in the Circuit Court no allusion was made to this objection and that it is presented in this court for the first time. Counsel for appellant do not controvert this statement and we assume that they can not.
While we must be guided by the record and not by assertions of fact in the briefs, we are impressed with the injustice of considering a point possibly not urged in the Circuit Court which does not go to the merits of the cause of action but only to the amount claimed, and which, had it been important as affecting the sum for which defendant was liable, could have been so readily obviated. The damages were assessed by a jury, counsel for defendant being present making some objections to the admission of evidence and cross-examining the plaintiff, who appeared as a witness. Nowhere in the proceedings do we find any suggestion in this respect. We think it can not be considered now.
As was said in I. & St. L. R. R. Co. v. Estes, 96 Ill. 474, “ a case ought not to be reversed in this court on a question which the Circuit Court did not in fact decide, and which, if presented to that court, might at once have been obviated.”
See also as analogous, Tomlinson v. Earnshaw, 112 Ill. 311, and Utter v. Jaffray, 112 Ill. 470.
The main controversy in the case and upon which the rights of the parties really depend is, whether the facts alleged as to the manner whereby the assured lost his life, fix liability upon the defendant. It is averred in substance that by accident the assured took an overdose, or excessive quantity of laudanum which caused his death. The certificate limits liability to “ injuries received by or through external, violent and accidental means,” and it is contended on behalf of the company that such a case is not made by the allegation of accidentally taking poison.
In the case of Healey against this company, 133 Ill. 556, the Supreme Court held that death so caused was within the spirit of the policy and that the company was liable, precisely the same provision being under consideration.
Counsel urge, however, that the court overlooked another clause in the policy exempting the company from liability in case of “ the taking of poison in any maimer.” It is true this clause is not discussed in the opinion, but we are not to assume that it was overlooked or that the proper construction of it should modify the views expressed.
We feel bound to follow the ruling of the Supreme Court. The judgment will be affirmed.
Judgment affirmed.
