Lloyd v. Travelers Protective Ass'n of America , 115 Ill. App. 39 ( 1904 )

Mr. Presiding Justice Adams

delivered the opinion of the court.

4 Appellee's counsel, in support of the demurrer and the judgment sustaining it, contends that the appellant, instead of averring in her declaration that “ George H. Lloyd came to his death by accident within three months after the accident causing such death,” should have averred that lie came to his death “ by accident within the limitations and conditions of the benefit certificate issued by the association to him,” and that, the latter averment not having been made, no cause of action is stated. In support of this contention Knickerbocker Insurance Co. v. Tolman, 80 111. 106, is cited, in which case the court, citing Chitty on Pleading, say : “ The general rule is, that where a right is conferred by a clause, absolute and -unconditional in its terms, but the right is limited in a subsequent clause, by a condition or exception, the pleader is not required to negative the condition or exception, but it is for the defense to plead it. But where the condition is contained in or referred to by the clause giving the right, then the plaintiff must set out and negative the condition or exception.” In the case cited the objection made was that the declaration, which was on a policy of insurance against fire, did not aver to what extent the property destroyed was insured in other companies, in respect to which the court say: “ If the clause that appellees should only recover any greater proportion of loss than the amount hereby insured bears to the whole sum insured, had been contained in the clause agreeing to insure the property, then it may be the position of appellant would be correct. But this latter clause is in a subsequent place in the policy and falls within the rule.”

Counsel for appellee relies on the reference in the benefit certificate to the constitution and bydaws of the association, the conditions or exceptions on the back of the certificate, and the averment in the declaration that it was provided in the constitution “ that in case the death of an active member of the said association, in good standing, should be brought about-by accident, within the limitations and conditions of the benefit certificate issued by such association to such member; then $5,000 should be paid by said association to the beneficiar}7" named in such certificate.” We do not think the rule as to pleading, on which counsel relies, is applicable to the certificate in question. If the words “ under the provisions of the constitution and by daws of this association ” were not in the certificate, the limitations on appellee’s right of recovery would be precisely the same as now. She could then only recover subject to and in accordance with the provisions of the constitution and by-laws of the association, in force when Lloyd, deceased, became a member of the association, or which may have been legally modified or changed as to him. In order to make a prima facie case, appellant is not bound to prove, in the first instance, that Lloyd, deceased, did not violate any provision of the constitution or bydaxvs of the association, or that his death xvas not occasioned by any of the causes in respect to which appellee is exempt from liability by the conditions or exceptions printed on the back of the certificate. These are matters of defense, to axmil of xvhich they must be specially pleaded. 4 Joyce on" Insurance, sections 3684, 3691, citing numerous cases. In section 3684 the author says: “ And if a life policy excepts liability for death from certain causes, it is not necessary to allege in the complaint that the insured did not meet death from any of these causes, since they are matters of defense,” citing Employers’ Liability Ins. Co. v. Rochelle, 35 S. W. Rep. (Texas) 869, xvhich sustains the text. See, also, the following cases : Tripp, et al., v. Insurance Co., 55 Vt. 100; Coburn v. Travelers Ins. Co., 145 Mass. 226; Western Assurance Co. of Toronto v. Mohlman Co., (U. S. Ct. of Appeals, Second Ct.) 83 Fed. R. 811, 28 U. S. Court of Appeals, 151; Insurance Co. v. Crunk, 91 Tenn. 377; Blasingame v. Home Ins. Co., 75 Cal. 633.

In Western Assurance Co. of Toronto v. Mohlman Co., supra, the policy contained this clause : “ The Western Assurance Company, in consideration of $65 premium, does insure for the term of one year from November 12,1894, at noon, to November 12, 1895, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $10,000, on stock J. H. Mohlman & Co.” One of the exceptions, in the event of which the company was not to be liable, was : “ If a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building, or its contents, shall immediately cease.” Notwithstanding the policy, in the clause agreeing to insure, expressly refers to the exceptions to the company’s liability, as does the benefit certificate in this case to the constitution and by-laws of appellee, and the conditions on the back of the certificate, the trial court charged the jury “ that the burden of proof rested upon the defendant (the insurance company) to show, by a preponderance of evidence, that the fall preceded the fire,” and that the “ building did not fall as the result of the fire.” and refused to charge the contrary. The Court of Appeals sustained the charge of the trial court, citing .authorities.

It is averred in the declaration that the deceased, after the making and delivery of the certificate, and while he was an active member of the association, in good standing, to wit, on the 28th day of May, 1892, came to his death, etc. This averment is, although argumentative, equivalent to the averment that the deceased “ has in all things observed, performed and fulfilled all and singular the matters and things which were on his part to be observed, performed and fulfilled,” etc., which latter averment is sufficient. 4 Joyce on Insurance, section 3674. The technical defect of the averment in the declaration being argumentative, cannot be reached by general demurrer.

The judgment will be reversed and the cause remanded.

Reversed, and remanded.