Kelly v. North American Union

Me. Peesiding Justice Smith delivered the opinion of the court. From the assignment of errors and the contentions of appellant’s brief, we understand that it is claimed that the judgment is erroneous for two main reasons: first, because the incontestable clause of the contract does not limit appellant’s right to contest the payment of the policy to the items excepted in said clause, namely, (1) non-payment of dues, etc., (2) engaging in prohibited occupations, and (3) becoming habitually addicted to the excessive use of intoxicating liquors, etc. And second, that under the pleadings appellant had the right to show that the policy was defeated and became null and void because Kelly, the insured, became habitually addicted to the excessive use of intoxicating liquors, and violated the laws of appellant. These questions arise on the rulings of the trial. court excluding the following evidence offered by appellant. Counsel for appellant offered to prove by the testimony of White that on March 31, 1907, he saw a man by the name of Harry Fox pursued by Edward Kelly, the deceased, and that White saw Kelly make a kick at Fox, and that Fox picked up a broom handle and struck Kelly with it on the side of his head; that Fox said to the officer who captured him, “Captain don’t let him hit me, he has beat me up several times, pretending he is a police officer, and he ain’t on the force now; and has threatened to arrest me and let me go for a little change. He asked me for a few nickels to-day which I wouldn’t give him.” Counsel for appellant further offered to prove by a witness, Blumbly, that on March 31, 1907, about 1:30 P. M. he saw Harry Pox walk north ón State street toward Twenty-first street; and about midway between Twenty-first and Twenty-second streets, Edward Kelly passed Pox and turned around and motioned Pox to come back to him, at which Pox shook his head in the negative; that Kelly put his right hand in his right-hand hip pocket, aseif reaching for a revolver. Thereupon Pox started to run and Kelly followed him to an alley with his hand still in his hip pocket; that the witness Blumbly spoke to Kelly “and asked what was the matter, and Kelly answered that he would get him yet.” That about fifteen minutes later the witness saw Pox on State street just north of Twenty-second street, and Kelly went to Pox, who commenced to back away from him. Kelly again put his hand in his hip pocket, and thereupon Pox picked up a piece of broom handle about three feet long and struck Kelly. Before striking him Pox said to Kelly, “You are not a policeman any more and have no right to arrest me.” Pox further said, “Don’t shoot me.” Appellant also offered the testimony of Harry Fox to the same effect, and that “he had known Kelly to be more or less of a drinking man * * * for probably four or five years up to that time.” The evidence offered tended to prove the first special plea, and if, under the contract of insurance, it constituted a defense it was error to exclude it. This raises the question of the construction of the contract of insurance, and particularly the effect of the incontestable clause at the close of the contract. Following the general contract of insurance by which appellant in its certificate agreed to pay to appellee $2,000 out of its mortuary fund upon proof of the death of Kelly, provided he was in good standing in the appellant association at the time of his death, certain clauses and provisions appear which fix the amount to be paid in the event of the total and permanent disability of the member; and when the member reaches the age of seventy years there is a provision for an annuity at the option of the insured; and there is another provision fixing the amount to he paid should the member die by his own hand or act; and a clause providing for the forfeiture of all rights and moneys paid by the insured in the event of expulsion or default in payments to the funds. The last provision of the contract is as follows: ‘ ‘ This contract shall be incontestable after two years from the date thereof, except for non-payment of dues, assessments, fines or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium or other injurious drugs, or substances, contrary to the laws, rules and regulations of the Association, and the agreements of the member.” We fail to discover in the provisions of the contract any obscurity or inconsistency calling for any explanation of terms or for any construction of the different clauses. The contract expresses clearly the agreement of the parties in plain language, the meaning of which is apparent as soon as it is read. The last provision of the policy making the policy incontestable after two years, except as to certain things, is plain and unequivocal. It makes the policy absolute, except for three things,—first, non-payment of dues etc., second, engaging in prohibited occupations, and third, becoming habitually addicted to the excessive use of intoxicating liquors etc., contrary to the rules and regulations of the association and the agreements of the members. The evidence offered by appellant stated above does not tend to prove any ground of forfeiture, or of avoiding liability under the contract of insurance, mentioned in said clause. In our opinion the defense set up in the first special plea and in the proof above offered is not available to appellant under the contract, after two years from its date; and the court did not err in excluding the evidence. In Sun Life Ins. Co. v. Taylor, 56 S. W. 668, the fourth clause of the policy there involved provided that it should be void “if the insured dies in consequence of his * * * own criminal action.” The twelfth clause of the policy provided: “If the insured shall die three or more years after the date hereof, and after all due premiums shall have been received by the company, this policy shall be incontestable.” One of the defenses to the action was that the insured died in consequence of his own criminal action, and therefore the policy was void. On the trial the company offered to prove that the insured assaulted a man and that the party assaulted in his own necessary self defense slew the insured.' The trial court excluded the evidence. It was contended that the twelfth clause of the policy, quoted above, did not render the policy incontestable where the insured died in consequence of his own criminal action; “that the parties did not intend by that provision of the policy to render unavailable a defense based on a violation of law which was made a breach of the policy by its terms, but that the provision as to the incontestable nature was that is should not be contested for misrepresentations in securing it.” It thus appears that the precise question presented in this case was before the Kentucky Court of Appeals. That court held in a well considered opinion, in which a number of cases in several jurisdictions are cited, that “the language providing that the policy should be incontestable does not restrict it to any particular grounds of contest, but is broad and comprehensive enough to embrace ány and every defense which might have been made to it before the expiration of three years. To say that it has reference to one defense and not to another is writing into the policy terms which the very language of it excludes.” The ruling of the trial court was sustained. See also Triple Link M. Ins. Co. v. Froebe, 90 Ill. App. 299. Appellant also offered to prove by Dr. Bernhardt that the witness made a post-mortem examination of the body of Edward Kelly at the hospital. Upon opening the body and head and examining the organs he found that death was due, in his opinion, to necrosis of the brain and cerebral hemorrhage due to fracture of the skull from external violence; that the witness examined the organs of the body of Edward Kelly, and from his examination it appeared that Kelly was addicted to the use of aleholic drinks and had been for some years past, or since June 19, 1901. The court excluded this evidence. Assuming (what we do not regard as clear) that the evidence offered tended to prove that Kelly had become “habitually addicted to the excessive use of intoxicating liquors, opiums or other injurious drugs, or substances, contrary to the laws, rules and regulations of the association, and the agreements of the members,” the question is, was this testimony admissible under the pleadings. The evidence offered tended to prove that the assured had not complied with.the conditions of his contract of membership and insurance. It does not tend to show that any facts stated in his application for the insurance were untrue. If Kelly became habi family addicted to the excessive use of intoxicating liquors two years after the certificate was issued, it was a failure to perform a condition subsequent of the contract, which was excepted from the incontestable clause. No special plea was filed putting in issue his failure to perform this condition of the contract, or his violation of his contract in respect to this condition. In Modern Woodmen of America v. Davis, 184 Ill. 236, it was held that the plaintiff need not prove performance of condition subsequent, unless it is put in issue by a special plea. It was not incumbent upon the plaintiff, appellee, in the first instance, to prove the truth of the statements made in the application for membership, or Kelly’s compliance with the laws of the appellant association, since those matters are matters of defense. Supreme Lodge v. Matejowsky, 190 Ill. 142; Phenix Ins. Co. v. Stocks, 149 id. 319. Appellant insists that proof of this defense is admissible under the general issue. In 2 May on Insurance, par. 591, it is laid down as the rule that a breach of a condition subsequent, if relied on to avoid the policy must be specially pleaded, and that proof of such breach is not admissible under the general issue. To the same effect is 4 Joyce on Insurance, par. 3691. Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 485. So in an action on a fire insurance policy it has been held that the defendant company cannot avail itself of the defense of violation of the conditions of the policy by a change of possession without specially pleading such defense and giving the plaintiff an opportunity to set up by replication any matter of waiver or otherwise which he might be able to present. Phenix Ins. Co. v. Caldwell, 187 Ill. 73, 82. The reason of the rule above stated is suggested by the last ease cited. The object of a special plea is to give the plaintiff notice of the special defense relied upon by the defendant which relieved it from paying the benefits secured by the policy. If the defendant had set up by special plea that the insured had become addicted to the use of intoxicating liquors the plaintiff might have replied and proved, if the facts warranted, that appellant had estopped itself from making such defense by accepting payment of dues and assessments after the insured had become so addicted, with full knowledge of the facts constituting the defense, and thus waived its right to insist on the defense. We are of the opinion that the evidence excluded was not admissible under the pleadings and that the court did not err in excluding it. To our opinion the record is free from substantial error and the judgment of the Municipal Court is affirmed. Affirmed.