Haley v. Prudential Insurance of America

Mr. Justice Wilkin delivered the opinion of the court: The Appellate Court, in pursuance of the statute in such case, has found and recited in its final judgment as follows: “That George M. Haley died within three years from the date of the policy sued upon, and that his death resulted in consequence of his own criminal action.” This is a finding of the ultimate fact put in issue by the defendant’s second plea setting up the foregoing condition in the policy, and is conclusive upon this court. It is not a question of law,' as contended.by appellant’s counsel, but at most but a mixed question of law and fact, and therefore not subject to review by this court. (Hunter v. Clarke, 184 Ill. 158; Cheney v. Cross, 181 id. 31; Meyer v. Butterbrodt, 146 id. 131, and cases cited.) Upon this finding nothing remains for us to do but to affirm the judgment of the Appellate Court. There is nothing in the finding of the Appellate Court, nor, as we understand, in the record, upon.which to base the contention of the insurance company that it. was not liable for the amount of the premiums paid, and for which that court gave judgment. The condition in the policy says, in effect, that even though the assured may die in consequence of his own criminal action the company shall be liable for the amount of the premiums paid on the policy, and the second plea not only recognizes that right of recovery, but avers that defendant is willing and has offered to pay that amount, namely, $318. The cross-error assigned by appellee is therefore without merit. It is lastly insisted by the appellant that if only the amount of the premiums paid can be recovered, error was committed by the Appellate Court in not allowing interest on the moneys paid from time to time, constituting this sum. This question was not presented to the Appellate Court, and cannot be raised in this court in the first instance. (Case v. Phillips, 182 Ill. 187.) As there is nothing in the record to show that the Appellate Court passed on the right of the plaintiff below to recover interest, or that it was even asked to do so, it is impossible for us to say it committed error in that regard. The judgment of the Appellate Court will be affirmed. Judgment affirmed.