Ætna Life Insurance v. Paul , 37 Ill. App. 439 ( 1890 )

Moran, P. J.

Appellee had some policies of life insurance in the appellant company, about which he had a litigation, one phase of which was decided by this court in an opinion found in 10 Ill. App. 431.

In December, 1885, appellant Mason caused a circular to be printed containing a statement of said decision, and circulated the same to some extent. Said circular is as follows :

“ Bradwell’s Deports, Appellate Courts, pages 431 to 446. Ætna Life Insurance Company v. Paul. February 6, 1874, Paul applies for ten thousand insurance, in the application for which he represents that he is in good health, of sound body and mind, and usually enjoysgood health; and in his answers to various interrogatories he denied that he was or ever had been afflicted with any of the several diseases and complaints therein specified. In like manner the statement of the medical examiner certified to his entire good health, and to his freedom from all the diseases to which particular attention was directed.

“ The first and second semi-annual premiums were paid, and some time after August 6, 1874, he applied to the agent to sell his insurance, giving as a reason that his health was and for a long time had been much impaired. The agent expressed surprise, and asked him to make a statement in writing, which was as follows (see page 437):

‘ Chicago, Ill., October 16, 1874.

'D. C. Day, Ag’t Ætna Life Insurance Company.

‘Dear Sir:—I comply with your request. First, I was in Hashville, Tenn., 1865; had hemorrhoids, or, as many call them, piles, very badly, and I had them badly in 1866, and up to 1869, and at times was confined to the house some two or three months at a time; have hemorrhaged until I fainted. Have not been able at any time to perform labor, or do anything that required me to stand on my feet or walk much. A very little exercise would soon change my pulse from 70 to over 100. Have had doctors feel them when they were 130. During all this time I had to wear a supporter and a ball to keep the rectum up while walking, and often I have had from 7 to 10 actions per day, always using a syringe, and I had to put the rectum up every time after an action, and several times a day besides. I never could travel around much. Can not go out early in the morning, but have to return early in the afternoon. Could not stand much excitement. The insurance on my life in 1866 and 1867 was entirely at the request of the agent. I told him at the time I did not believe, in my condition, any company would take me; but the agent thought differently, and even brought the Dr. to my office to examine me, and then I did not believe the company would take me. I do not know what is in my application, as I never read it, but supposed the agent was honest. At the time I know I gave him a correct statement, and I know he was fully aware of my condition all the time from 1869 to 1873. I was still having piles, but not as bad as before, but always using a syringe, having actions 4 or o times per day. The last of 1873 was some better than usual. I moved to Chicago, Aug., 1873, and I immediately felt better, and continued to improve all fall, and in Dec., Jan., Feb., was in much better condition than it had been for some time; could walk around more, but all the time had to use a syringe. Last March a change commenced on me, and has been growing all summer long; I have been weak, and throwing np black, slimy corruption every morning, always being worse when I first get up in the morning. For the past five months my back has been very weak; my chest and side hurts me all the time, and I am suffering all the time; my bowels very sore all the time. I have been suffering more the past month than usual. I have been in hopes when the weather got cooler I would gain a little strength, but it is not the fact. lean not sit up straight but a very short time, and then must put my feet on something and lean back. 1 can not remain long in one position day or night. I often have spells of sneezing which last about 24 hours; often have them twice a week. They are a great deal like a person with a bad cold running at my nose. I am troubled with a breaking out on my limbs. They give me a great deal of trouble; often go to sleep. I have to be very careful while walking or I would fall down. I do now think I am in a worse condition account of my back, chest, side and bowels, and spitting up so much corruption. I cough sometimes, but my cough I do not think dangerous. My appetite has been good most all the time. I am troubled with wind on my bowels badly all the time. Am very nervous.

J. E. Paul.’

“Judge Anthony says, page 445, that these representations were false, and were known to be so by the plaintiff; that the defendant relied upon them in issuing the policy, is, as the evidence now stands, beyond dispute. It thus appears that the policy was avoided in consequence of the plaintiff’s own fraud.”

Thereupon appellee commenced this action for libel. On the last trial thereof there was a verdict against both defendants, with damages fixed at $500.

When the plaintiff’s evidence was closed the appellant company moved to have the evidence excluded as to it, which motion the court overruled. After the verdict said company moved for a new trial, on the ground, among others, that the evidence did not support the finding. The motion was overruled and judgment rendered, and the case is brought here by appeal.

The fact that Mason was the agent of the ACtna Life Insurance Company in Chicago is the only one, proved, on which the liability of said company for the publication of said circular can be based. It is not pretended that the printing or circulating of it was specially authorized by the company in advance, or that it subsequently ratified such acts. The expense of the printing was paid by Mason and not by the company, and the company was not informed and had no actual knowledge that the circular was printed or sent out.

The rules and instructions which the company issued for the government of their agents limited them as to the expenses they might incur for the company, and no authority was given to print anything unless application was made to the home office.

Mason was, at the time he printed and circulated the matter in question, the agent of the company for the purpose of transacting the ordinary insurance business of the company. It was, no doubt, within the scope of his duty to push the business of the company in competition with other companies in the like business, but by the regular and ordinary methods and not through means of malicious torts. Cooley in his work on Torts, page 121, after stating that a corporation would be liable for a libel on a business rival, contained in an official report through its board of directors, says: “If, on the other hand, some servant of the corporation, who supposed he might advance its interests by decrying the business of a rival, were to proceed to do so by communications in the daily press, it is plain that these, though having in view the same purpose. which the publication by the official board was meant to accomplish, can in no sense be regarded as corporate acts. They have not the corporate authorization; they are not made within the apparent scope of the servant’s duty, and the tort is consequently an individual tort, purely and solely, and redress must be sought accordingly.”

In Southern Express Co. v. Fitzner, 59 Miss. 581, it was held that the corporation was not liable for a libelous letter, written by its local agent, though it related to business of the company, for the reason that it did not appear that writing the letter was expressly authorized, or that it was within the scope of his authority. See, also, Woodling v. Knickerbocker, 31 Minn. 268; Harding v. Greening, 8 Taunt. 42.

We are of opinion that the motion of the appellant company to exclude the evidence and direct a verdict in its favor, should have been granted, and that having overruled that motion, the court should have granted a new trial on the ground that the evidence did not support the verdict.

As this error will work a reversal of the judgment, we think it unnecessary to pass at this time on other grounds assigned for reversal.

The judgment will be reversed and the case remanded.

Reversed and remanded.