57 Ill. App. 315 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
We do not approve of the phraseology of some of the instructions given for the plaintiff, reading as they do, that if the jury find that the defendant, through its adjuster, “ was guilty of making to the-plaintiff the false and fraudulent representations as alleged by the plaintiff in her declaration,” yet we are of the opinion that the jury were not unduly influenced by such expression, and did not return their verdict because they took these instructions as an intimation by the court of an opinion upon the facts. ,
As to all disputed questions of fact the jury have found for the plaintiff upon evidence which, while not conclusive, is such that it can not be said that the verdict is clearly contrary to the weight of the evidence.
A majority of the court are of the opinion that accidents happening from the doing of such acts as are incident to the life of a considerable portion of mankind are not such as are excepted from insurance, by the following provision of the policy in question:
“ This certificate shall be wholly void as to all accidents occurring in any occupation, profession or employment or exposure not named or incident to the occupation under which he receives membership, unless he shall have first procured from this association through its secretary a written permit therefor.”
While hunting is a thing which the average laborer, mechanic, clerk or small tradesman rarely if ever engages in, it is not an act so extraordinary as to excite attention as a departure from what an individual may be expected to do.
In the present case the insurance ivas for the occupation of an auctioneer. It does not appear that the assured had ceased to follow such calling, while it is shown that it was understood he was about to go west.
It also appears that when he departed for the west he said he intended to buy horses. The buying of horses is not inconsistent with the business of an auctioneer, or with a trip to the west. His death was not caused by anything related to the business of buying horses; a business which it is not shown he had adopted as an occupation, profession or employment.
We do not regard the fact that while on a western trip he may have bought horses, or that be went west to buy horses, as showing a change of occupation; what he did or intended in that regard does not appear to have been more than the doing, for a brief time, of something outside his regular calling, which is no more than the majority of mankind do with more or less frequency.
We think that under the evidence of the death of the assured, by the discharge of a gun, the law does presume, in the absence of evidence to the contrary, that the act was not intentional upon his part; such a presumption is but a recognition of a law of nature, the exceptions to which are few. C. & E. I. R. R. Co. v. Hines, 132 Ill. 161.
The jury having found that the settlement was obtained by means of false and fraudulent representations made by the agent of appellee, it is not necessary to an affirmance of the judgment, that we concur in the conclusion of the jury as to this matter; it is enough that we are unprepared to say that the finding is unsupported by, or clearly against the weight of the evidence.
A more difficult question is presented by the fact that the plaintiff having, as she says, succumbed to the fraudulent artifices of the defendant and received as a result the sum of $3,000 in consideration of her release of all claim, brought this suit and has recovered this judgment without returning or tendering back the money, to obtain which she had given a full acquittance.
Had the present litigation resulted in a judgment establishing that she never had a cause of action, she would still be and remain in possession of the fruits of her settlement and release.
It is useless to attempt to reconcile the conflicting decisions upon the question of whether, when a release of a cause of action has been obtained by fraud, a tender bade of that received for the release must be made before bringing suit to recover upon the original cause of action. A valuable collection of authorities is presented in the opinions, pro and con, of the judges of the Supreme Court of Missouri, delivered in Gerard v. St. Louis Car Wheel Co., published in The Chicago Law Journal for October, 1894. To the cases in this State there cited, may be added, Hefter et al. v. Cohn et al., 73 Ill. 296; Hayes v. Mass. Mut. Life Ins. Co., 125 Ill. 631; Buchanan v. Horney, 12 Ill. 336; Jennings v. Gage, 13 Ill. 61; Bowen v. Schuler, 41 Ill. 192; Ryan v. Brandt, 42 Ill. 78; Wolf v. Dietsch, 75 Ill. 205; Lovington v. Short, 77 Ill. 588; Kellogg v. Turpie, 93 Ill. 265; Strong v. Lord, 107 Ill. 25; Smith v. Brittenham, 109 Ill. 540; Preston v. Spaulding, 120 Ill. 208-227; Doane v. Lockwood, 115 Ill. 490; Farwell v. Hanchett, 120 Ill. 573; Rigdon v. Walcott, 43 Ill. App. 352; same, 141 Ill. 649; Carroll v. The People, 13 Ill. App. 206.
In the discussions carried on it has sometimes been said that the rule that he who seeks to rescind a contract must restore the statu §w—place the other party in as good a situation as he occupied when the contract was made—is satisfied if the judgment asked for will accomplish that result; that a distinction is to be drawn between cases where the thing he who seeks to rescind has received, is money, and those in which the reception has been of lands, merchandise, etc.; and that in the case of the reception of money it is sufficient if, by the pleadings, credit of the sum so received is given upon the claim made; that it is unreasonable to require a party to return the sum received and then immediately sue to recover it back again.
Upon the other side it is urged that so long as a party holds on to that which he has obtained as the result of a compact, he is, whatever may be his words, acting in affirmance of the contract, actually claiming and getting the benefit of an agreement which by his pleadings he assumes to repudiate and insists is null and void; that to allow one occupying such inconsistent position, thus blowing hot and acting cold, to speculate upon the result of a lawsuit, to hold on to the fruit of the agreement if he is unsuccessful and to deprive the. other party of such fruit if the suit go in his favor, is not only absurd, repugnant to justice as well as in violation of well established principles of law, but tends to encourage litigation and to discourage the settlement of controversies.
A majority of the court being of the opinion that in this State, where money only has been received in compromise arid settlement of a claim, a party may, upon an allegation of fraud in procuring such settlement, sue for and recover the balance he claims, without tendering back the amount obtained as a result of the compromise, the judgment of the Circuit Court is affirmed.
