{ "id": 2516695, "name": "Continental Casualty Company v. John B. Maxwell, Administrator", "name_abbreviation": "Continental Casualty Co. v. Maxwell", "decision_date": "1906-03-22", "docket_number": "", "first_page": "19", "last_page": "23", "citations": [ { "type": "official", "cite": "127 Ill. App. 19" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "90 Ill. App. 623", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 1673363 ], "opinion_index": 0, "case_paths": [ "/ill-app/90/0623-01" ] }, { "cite": "100 Ill. App. 201", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2599404 ], "opinion_index": 0, "case_paths": [ "/ill-app/100/0201-01" ] }, { "cite": "64 Ill. App. 341", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5174174 ], "opinion_index": 0, "case_paths": [ "/ill-app/64/0341-01" ] }, { "cite": "165 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3104883 ], "opinion_index": 0, "case_paths": [ "/ill/165/0041-01" ] }, { "cite": "182 Ill. 18", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3212584 ], "opinion_index": 0, "case_paths": [ "/ill/182/0018-01" ] } ], "analysis": { "cardinality": 519, "char_count": 9031, "ocr_confidence": 0.538, "pagerank": { "raw": 7.487868527505706e-08, "percentile": 0.4459335273987016 }, "sha256": "d141e708b310c0a9a2baf02b3f13d9aca927a1fa2b35ce21c40ccae0f9c935c3", "simhash": "1:2daafd24303d7c17", "word_count": 1540 }, "last_updated": "2023-07-14T19:18:02.092160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Continental Casualty Company v. John B. Maxwell, Administrator." ], "opinions": [ { "text": "Mr. Justice Creighton\ndelivered the opinion of the court.\nThis was a suit in assumpsit, in the Circuit Court of Wabash County, by appellee against appellant, to recover \u201can illness indemnity\u201d which had accrued to appellee\u2019s intestate, during his lifetime, under an insurance policy issued by appellant to said intestate. Trial by jury. Yer-dict and judgment in favor of appellee for $204.\nOn the 4th day of August, 1903, appellant issued its policy to Marshall Sargent, whereby in consideration of his \u201cpayment of the policy fee and the premium of $1.25, on or before the first day of each and every month thereafter,\u201d it promised to pay him certain specified sums-in case he should suffer certain specified injuries by reason of certain specified accidental causes, and it promised to pay his wife, Mary C. Sargent, a specified \u201c death indemnity,\u201d in case he should die within a specified time, \u201c through external, violent and purely accidental causes,\u201d and it also promised to pay him \u201c an illness indemnity,\u201d in case he should become ill. This clause in the policy is as follows:\n\u201c Three. An Illness Indemnity of Thirty Dollars per month, or -at that rate for any proportionate part of a month for the time, after the first week, the insured is necessarily and continuously confined strictly in the house, and being regularly visited by a legally qualified physician, by reason of acute illness that is contracted and begins after this policy has been in full force and effect, without delinquency, for thirty consecutive days immediately preceding the commencement of such illness; and a partial indemnity at one-fifth of said monthly rate for such time as he shall immediately thereafter, by reason of illness, be wholly and continuously disabled and prevented from attending to or performing any and all kinds of business, though not necessarily confined in the house, while under the care of a legally qualified physician; provided that the total length of time for which the indemnity shall be paid, for any one continuous illness, shall not exceed eight consecutive months. Disability resulting from sunstrokes, freezing, carbuncles, boils, felons, abscess and ulcers is classified as illness and covered only under paragraph numbered three hereof.\n\u201cThe.indemnities herein provided shall be increased TEN PER CENT. ON ANY CLAIM ACCRUING after the policy shall have been in continuous force, without default, for not less than one year immediately preceding; or, any claim accruing hereunder if the premiums hereon have been paid annually in advance.\u201d\nThe declaration upon which the case was tried consists of one count, based upon the above quoted clause of the policy, to which appellants pleaded the general issue only.\n\u201cMarshall Sargent, the insured, was taken sick during the month of January, 1904, and continued to suffer from Bright\u2019s disease until October 19, 1904, when he died, leaving him surviving Mary 0. Sargent, his wife\u201d, and appellee, John B. Maxwell, was duly appointed administrator of his estate, and duly qualified as such.\nCounsel\u2019s first contention is that no action will lie on the policy declared on, at the suit of the administrator, and in support of this contention say: Appellant \u201chas in no way obligated itself in the event of death of the assured, Marshall Sargent, to pay anyone but Mary 0. Sargent, his wife.\u201d That is.true as to the \u201cdeath indemnity\u201d, but this is not a suit to recover the specified death indemnity. This is a suit by the administrator of the estate of Marshall Sargent, to recover an indebtedness that accrued to him during his lifetime.\nCounsel insist that there is a variance between the poi-icy put in evidence and the declaration, in this, that in one of the averments of the declaration concerning the provisions of the policy the word \u201cshould\u201d is used, while in the policy the word \u201cshall\u201d and, therefore, the judgment should be reversed.\nUnder the-state of this record the variance is wholly immaterial, and, if it were material, appellant is estopped from raising it here. The question of variance cannot be raised for the first time in a court of review. \u201cA party who fails to object to evidence when offered, on the ground of variance, waives the' objection.\u201d Swift & Co. v. Rutkowski, 182 Ill. 18. \u201cA defendant desiring to take advantage of a variance between the declaration and the evidence should object to the evidence upon that ground when it is offered at the trial, to enable the plaintiff to amend, and, if this course is not pursued, the objection to the evidence is waived.\u201d Swift & Co. v. Madden, 165 Ill. 41.\nAppellee, Maxwell, was a competent witness to testify in favor of the estate. Section 2 of chapter 51 does not disqualify witnesses from testifying in favor of the. estate of a deceased person. The disqualification is as to those who would testify against the estate. It is wholly immaterial either with respect to Maxwell\u2019s right to testify, or his right, as administrator, to bring and maintain the suit, whether he was interested in the result of the suit or whether the policy had or had not been assigned to him. An interested party may testify in favor of the estate of a deceased person, and no such pledge or assignment of the policy, as is claimed here, could pass the legal title. In such case the suit must be by and in the name of the personal representative, where the party in whom the legal title rests is dead. A party entitled to sue need not, as far as the party sued is concerned, name any usee, although another may have an equitable interest or be the equitable owner of the chose in action. Where the legal title or right stands in the plaintiff, a defendant will no't be heard to say that the equitable title is not in the plaintiff, or that it is in another. That is no concern of his. Schiff v. Supreme Lodge, 64 Ill. App. 341; Jones v. Maxton, 100 Ill. App. 201.\nSome other questions are raised on this appeal that are dependent wholly on the evidence. These we cannot.discuss, for the bill of exceptions does not disclose that it contains all the evidence. In such case the presumption is that there was before the jury and the trial court sufficient competent evidence to fully sustain the verdict and judgment. The bill of exceptions does not state that it contains all the evidence, nor does the trial judge so certify. The presumption in such case is that it does not.\nThere is bound in with the record the following writing:\n\u201cI, Rene Havill, Official Reporter in and for the Oounty of Wabash and State of Illinois, certify that the above and foregoing is a true and correct copy of all the evidence, both oral and documentary, heard on the trial of the aforesaid cause, taken from my stenographic shorthand notes.\nIn Witness Whereof, I have hereunto set my hand this 22nd day of July, A. D. 1905, at Mt. Carmel, Illinois.\nRene Havill,\nOfficial Reporter.\u201d\nThis does not meet the requirements of the law. A reporter\u2019s certificate has no place in a bill of exceptions. It must be stated in a bill of exceptions that it contains all the evidence, or it must be so stated in the judge\u2019s certificate. As we said in Pointon v. The St. Louis, A. & T. H. R. R. Co., 90 Ill. App. 623: \u201cA bill of exceptions which fails to state that it contains all the evidence in the case is not aided by the statement of the reporter. The making of a bill of exceptions is a judicial act and cannot be delegated.\u201d\nWe do not deem it out of place, however, to note that, without presuming anything for omitted evidence, there is sufficient disclosed in the record to amply support the verdict.\nThe judgment of the Circuit Court is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Creighton" } ], "attorneys": [ "Mant\u00f3n Maverick and Mundy & Phipps, for appellant.", "Green & Risley and P. J. Kolb, for appellee." ], "corrections": "", "head_matter": "Continental Casualty Company v. John B. Maxwell, Administrator.\n1. Fraternal benefit society\u2014sick benefits may be recovered by administrator after death of member. In addition to the death claim, which can only be recovered by the beneficiary, the administrator of a deceased member may recover sick benefits which became due such beneficiary in his lifetime.\n2. Variance\u2014when objection of, comes too late. An objection of variance cannot be first raised on appeal.\n3. Witness\u2014when interest does not disqualify. A party in interest is competent to testify in favor of the estate represented by the adverse party litigant.\n4. Plaintiff\u2019s title\u2014defendant cannot attack. It is no concern of the defendant in an assumpsit suit whether he has or has not assigned his interest in the claim in controversy.\n5. Bill of exceptions\u2014when, does not purport to contain all the evidence. The absence of the certificate of the judge that the bill of exceptions contains all the evidence is not supplied by the certificate to that effect signed by the official reporter who furnished the transcript.\nAction of assumpsit. Appeal from the Circuit Court of Wabash County; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the August term, 1905.\nAffirmed.\nOpinion filed March 22, 1906.\nMant\u00f3n Maverick and Mundy & Phipps, for appellant.\nGreen & Risley and P. J. Kolb, for appellee." }, "file_name": "0019-01", "first_page_order": 37, "last_page_order": 41 }