#### The Massachusetts Mutual Life Insurance Company v. Catharine M. Robinson.

Filed at Springfield March 21, 1881.

1. Party—plaintiff in suit on insurance policy. Where a life policy of insurance contains an express promise and agreement to pay the sum. insured to the “assured, bis executors, administrators or assigns, ninety days after due notice and proof of the death” of the assured, the executrix of the assured is the proper party to bring suit upon the same, and a subsequent provision in the policy that the sum insured is for the express benefit of the wife of the assured and their children, will not change the rule.

2. Practice—consideration of questions of fact. In case of a suit on a policy of iusurance coming to this court through the Appellate Court, no question of fact can be considered. Where the judgment of the trial court is affirmed in the Appellate Court, it implies a finding of the facts the same way as the jury did, and this court has no rightful authority to find the facts differently.

*3253. Interest—on life insurance. Interest is recoverable on the amount of a life insurance policy from the time it is due and payment is refused.

4. Insurance—effect of false answers in application made by agent of ike insurers. Where the assured makes a full and complete statement of all facts that materially affect the risk, and the agent of the company, acting in its behalf in preparing the application, of his own accord writes false answers to the usual questions propounded, to be signed by the applicant, with the advice to him that the omitted facts are immaterial, and the assured, in good faith, r .opts the application as prepared, the company will be estopped from denying its liability on the policy after receiving premiums, when loss may occur.

5. Instruction—presumption as to how understood. It will be presumed that the jury understood instructions as they commonly impress the mind.

6. Error will not always reverse. Entire accuracy in expressing the law in instructions is not to be expected in every case, and it is a rule of general application that every slight error that may appear, will not be a sufficient warrant for reversing the judgment.

Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. Charles S. Zane, Judge, presiding.

Mr. R. McWilliams, for the appellant:

This action can not be maintained by the executrix of the estate of the assured. Ho one could recover on the policy until after the death of the assured. After that event he could not sue. The fruits of the contract are solely for the benefit of his widow and their children. She and they are the parties in interest, and as such, entitled to maintain the action. Hogle v. Guardian Life Ins. Co. 6 Robertson, 567.

The assured expressly agreed that the questions and answers in the application should form a part of the contract or policy, and that if the answers were not in all respects true, the policy should be void. He also warranted the statements to be true as slated. A warranty is construed as a condition precedent, which must be strictly complied with or else the contract is rendered void. Eddy Street Iron Foundry *326 v. Hamptdon F. & M. Fire Ins. Co. 1 Cliff. 300; Glendale Woolen Co. v. Protection Fire Ins. Co. 21 Conn. 19; Mutual Benefit Life Ins. Co. v. Miller, 39 Ind. 475; Ripley v. Ætna Fire Ins. Co. 30 N. Y. 136; Bliss on Life Ins. secs. 39, 58; May on Ins. p. 627, sec. 513.

Whether one party, through negligence, mistake, inadverfence, oversight, or purposely, omits to communicate a material fact, the other is wholly exonerated from the contract. If there be no fraud, then the concealment must be of a material circumstance, and the test of materiality in concealment is the same as in misrepresentation. Bliss Life Ins. (3d ed.), secs. 40 and 66; Daniels v. Hudson River Fire Ins. Co. 12 Cush. 416; Insurance v. Wilkinson, 13 Wall. 222.

Mr. E. Lane, and Mr. W. T. Coale, for the appellee:

The action was properly brought in the name of the executrix. Bailey v. New Eng. Life Ins. Co. 114 Mass. 177. See Burroughs v. State Ass. Co. 97 id. 359; Gould v. Enerson, 99 id. 154.

The policy in this case is quite different from the cases cited by appellant, and the cases of St. Paul F. &. M. Ins. Co. v. Johnson, 77 Ill. 599, and Westchester Fire Ins. Co. v. Foster, 90 id. 121.

But this question can not be raised for the first time in the Appellate Court. Campbell v. New England Mut. Life Ins. Co. 98 Mass. 381.

Parol evidence is admissible, notwithstanding the written application, to show that the deceased made true statements to the agent Avheu the application was made, and that the agent made a false entry. 2 Wharton’s Ev. 1172.

If the applicant correctly states the facts, but the agent records them Avrongly in the application subsequently signed by the assured, the company Avill be estopped .from availing itself of any alleged misrepresentation or concealment. Bliss Life Ins. 107; Insurance Co. v. Wilkinson, 13 Wall. 222; Romley v. Empire Ins. Co. 36 N. Y. 550; Anson v. Win *327 neshiek Ins. Co. 23 Ia. 84 ; 2 Whart. Ev. 1173; Wood’s Ins. 276; 3 Baxter (Tenn.), 155; Miller v. Mutual Ins. Co. 31 Ia. 216; American Ins. Co. v. Luttrell, 89 Ill. 314; Rockford Ins. Co. v. Nelson, 75 id. 548; Germania Fire Ins. Co. v. McKee, 94 id. 494.

Where the agent makes out an application for insurance, with a knowledge of the facts, the company will be bound. Rockford Ins. Co. v. Nelson, 65 Ill. 416; Andes Ins. Co. v. Fish, 71 id. 623; Ætna Ins. Co. v. Maguire, 51 id. 342; Eclectic Life Ins. Co. v. Fahrenkrug, 68 id. 463; F. & M. Ins. Co. v. Chestnut, 50 id. 118. See also Atlantic Ins. Co. v. Wright, 22 id. 473; H. & M. Ins. Co. v. Cormick, 24 id. 461; New England F. & M. Ins. Co. v. Schettler, 38 id. 167.

Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Catharine M. Robinson, executrix of the estate of Ninian A. Robinson, deceased, ag.ainst the Massachusetts Mutual Life Insurance Company, on a policy issued by that company on the life of deceased. The amount of the risk assumed was $5000, and the policy contained the following provision in reference to its payment:

> " And the said company do promise and agree, to and with the said assured, his executors, administrators or assigns, Avell and truly to pay the said sum insured, to the said assured, his executors, administrators or assigns, ninety days after due notice, and proof of death of said Ninian A. Robinson during the continuance and before the termination of this policy, the balance of the year’s premium, if any, being first deducted therefrom. Said sum insured being for the express benefit of Catharine M. Robinson, wife of said assured, and their children.”

It appears from a stipulation signed by counsel, due notice8 and proof of death of the assured Avere furnished to defendant before suit Avas brought, but on -the trial of the ‘cause proof thereof was Avaived from the record by defendant, and the defence to the action was placed solely on the merits of *328the case. For the purpose of obtaining the policy, assured made an application in writing to the company, which contains many answers concerning the health of applicant and other facts material to the risk, and the admission of plaintiff is, the application offered in evidence is the application on which the policy was issued.

The defence made to the merits of the case was based on the alleged fraudulent character of the application upon which it is said the company acted in issuing the policy, and the deceit practiced on the company in that regard. It is shown the application was filled up by a local agent of the company, and whether assured was guilty of fraud, or concealment of facts material to the risk, in his answers to questions propounded to him by defendant’s agent, as the same are written in the application, are matters relied on as vitiating the policy. On this question testimony was taken and submitted to the jury before the cause was tried, but they found the issues for plaintiff and assessed her damages at the face of the policy, with interest for the detention.

A motion for a new trial was overruled and the court entered judgment on the verdict. That judgment, on the appeal of defendant, was affirmed in the Appellate Court, and the company bring the case to this court on their further appeal.

It is plain, the executrix was the proper party to bring the suit. The express promise and agreement of the company was to pay the sum insured to the “assured, his executors, administrators or assigns, ninety days after due notice and proof of death” of the assured. The subsequent provision, the “ sum insured being for the express benefit of Catharine M. Robinson, wife of the said assured, and their children,” does not change the legal liability. All the assured did was to name his wife and children as the beneficiaries of the sum insured when the same should be collected.

It is argued, the word “assured,” as used in the policy, is to be understood the parties for whose benefit the policy was *329taken. Such construction can not be maintained without doing violence to the words employed. The sum insured is for the benefit of Catharine M. Robinson, wife of the “assured,” and their children.

Plainly, the word “ assured, ” as there used, and elsewhere in the policy, means the husband, with Avhom the contract Ayas made, and no reasoning, however subtle, can make it even appear to mean anything else. It will be found that in every case cited from this court, where the beneficiaries have been permitted to recover in their OAvn names,- the sum insured, when the loss should occur, had been specifically made payable to such beneficiaries, as Avas the case in the Westchester Fire Insurance Company v. Foster, 90 Ill. 121.

The point made against the judgment, that has been most elaborated, is that no recovery can be had on the evidence as it appears in the record. Complaint is made that material answers made by assured to questions propounded to him and embodied in the application for insurance, and on Avhich the policy Avas issued, Avere untrue and Avere known to assured to be untrue at the time, and that assured withheld facts within his knoAvledge that would virtually affect the risk. It is said the fraud practiced by the assured in this respect was sufficient to avoid the policy.

It is not perceived how the question made can be considered in this court. It Avas one of the issues submitted to the jury on the evidence, and their finding was against the position taken by defendant. That finding, on defendant’s appeal, Avas aftenvards affirmed in the Appellate Court, Avhere it was the duty of the court to review evidence on questions of fact.

As was said in Hayward v. Merrill, 94 Ill. 349, no such duty devolves on this court. Only questions of law are reviewable in this court in common Iuav cases. In this case, the jury must have found the assured Avas not guilty of fraud in making his application for insurance, otherwise the verdict would have been for defendant. An affirmance of the judgment by the Appellate Court implies a finding of the facts in *330the same way the jury did. Under our statute this court has no rightful authority to find the facts differently from what the Appellate Court found them to be, and, so far as the questions made are questions of fact, or so far as théy depend on questions of fact, this court is conclusively bound by the finding of the Appellate Court. Germania Ins. Co. v. McKee, 94 Ill. 494.

Conceding, as must be done, that on the facts found, plaintiff was entitled to recover, the damages found by the jury were warranted by the evidence. Interest was allowed for the detention of the sum insured, and that the law permits. Notice of and proof of death of the assured having been made before suit brought, it does not appear the sum allowed was too great.

Some questions of law, arising on the instructions given at the trial, remain to be considered. As respects the warranty said to be contained in every application for insurance, the general doctrine, as laid down in cases in this and other courts, is, that when the assured makes a full and complete disclosure of all facts that would materially affect the risk about to be assumed, and the agent of the company, acting on its behalf, and who may undertake to prepare the application, of his own accord writes false answers to the usual questions propounded, to be signed by the applicant, with the advice to him the omitted facts are immaterial, and the assured, in good faith, adopts the application prepared by the agent for him, the company will be estopped from denying its liability on the policy, after receiving premiums, when loss may occur. Germania Fire Ins. Co. v. McKee, 94 Ill. 494; Andes Ins. Co. v. Fish, 71 id. 620; Insurance Co. v. Wilkinson, 13 Wall. 222; Miller v. Mutual Ben. Life Ins. Co. 31 Ia. 216.

So far as the court assumed to state this doctrine in the series of instructions given on behalf of plaintiff, it is stated with sufficient accuracy.

*331The criticism made on the first and second instructions is, they take from the jury the right of determining for themselves the materiality of facts alleged to have been concealed by the assured. This is not a correct reading of the instructions. Bightly understood, they make no .such impression, and the presumption will be indulged the jury understood them as they commonly impress the mind. It may be the fourth instruction is, in a measure, obnoxious to the criticism made upon it. Considering it in connection with other instructions given, as it was the duty of the jury to do, it was not so faulty as to have misled them on the real issues involved. Entire accuracy in expressions of the law in instructions given on the trial of causes is not to be expected in every case, and the rule is of general application, that every slight error that may appear will not be a sufficient warrant for reversing the judgment.

The series of instructions given on behalf of defendant state the law very favorably to the view counsel insisted upon, as respects the defence sought to be made. There can be no just ground of complaint on that score. All that was material to the defence in the refused instructions seems to have been contained in those given, and the court was not bound to state the same proposition a second time. The modifications made to some of defendant’s instructions, seem to have been necessary to make them conform to tire law as expressed in the decisions cited supra. It is certain such modifications introduced no error that could, by any possibility, prejudice the defence defendant was endeavoring to make.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.