Mr. Presiding Justice Brown
delivered the opinion of the court.
We think it well to note at the outset of this opinion— what we have heretofore frequently called attention to—that the rule we have to apply regarding reversal for error differs in cases coming to us from the Municipal Court of Chicago from that applicable to cases from other courts.
The following rule as to a case coming from the Superior Court was laid down in the opinion of the Supreme Court in Crane Co. v. Hogan, 228 Ill. 338:
“A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial. The court said in Kirby v. People, 123 Ill. 436, that the rule is not that the court must see that the error worked injury to the party complaining, but that the Court will not affirm where error has intervened unless it shall appear from the whole record that such error could not reasonably have affected the result.”
This, however, cannot be the rule under the Municipal Court act, which as to cases of the fourth and fifth classes expressly provides that “Ho order or judgment sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report or reports, signed by said Judge that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said Municipal Court directly affecting the matters at issue between the parties.”
On account of this distinction we regard it as unnecessary to pass on some of the questions elaborately argued by counsel in the extended briefs filed in this cause. We have given careful attention to them all, but a brief analysis of the controlling questions in the case alone will be sufficient to show our reasons for our decision.
We do not think it necessary to discuss some of the rulings on evidence or some of the questions of insurance law elaborately argued. Whether representations concerning the health of the insured are not, as a matter of law, material to the risk, so that it is erroneous to leave their materiality to the jury, is one of them. And so too, in the view we take of the case, is the question whether the answers complained of were warranties or merely representations, although we have no hesitation in expressing our opinion that the trial judge Was right in considering them as representations merely.
A consideration of some of the instructions given reveals, in our opinion, the controlling factor in the jury’s decision. One of the instructions, for example, as hereinbefore stated, told the jury that if they believed that Mary Jane Giblin made the answer in the application that she had never suffered from accident of any kind, and further believed that she had suffered from accident of any kind before the making of the application, they must find for the defendant.
This was equivalent to telling them that unless they found that Mary Jane Giblin did not make the answer in the application, they must find for the defendant, for that she had suffered from an accident was proven and admitted in the case. But substantially is the same thing true, so far as the proof is concerned at least, concerning the applicant’s having “a serious illness,” her suffering from “fits and convulsions,” and “the spitting of blood.” It inhered, therefore, in the verdict of the jury, in our opinion, that they found that the answers in question were not the answers of the applicant; in other words, that Mary Jane Giblin did not make them. That the question whether or not she did make them was intended to be left to the jury, is evident not only from the phrasing of the instructions on behalf of the defendant, but as well from the second and third instructions given on behalf of the plaintiff, and from the whole course of the trial. Therefore, unless we are “satisfied” that the judgment is contrary to the law and the evidence on this question, or “resulted” from errors which affected the decision of the jury on this question, we ought not to interfere with the verdict and judgment. The determination of the cause is much simplified for ns by this narrowing of the issue. If any one of the answers complained of was not Mary Jane Giblin’s, no one of them was. It is conceded that the signature at the foot of the application, witnessed by “P. Gallagher” is hers, but the contention of the plaintiff was and is that the answers being, as it is admitted, written by Gallagher, who was an agent of the Company, were written and presented to Mary J ane Giblin under such circumstances and in such a way as to prevent her signature to the application being properly held to make them hers. They were, it is contended, those of the company’s agent, and it is hound by them.
The first question, then, for our decision is whether we are satisfied that the finding of the jury, which, as we have said, inhered in their verdict that the answers were not hers, was clearly against the weight of the evidence under the instructions which were given by the court; and the second, whether we are satisfied that the law was so incorrctly stated by the court on this point as to have resulted in that verdict.
The instructions of the court which related to this question are the second and third tendered by the plaintiff, and have been set forth in the statement prefixed to this opinion.
Under them the jury were practically left to say whether, even if the answers were false, the defendant had proven by a preponderance of evidence that they were the representations of the insured, and were told that they were not her representations, although she signed the application, if the agent of the company filled out the application including them, and she signed it without reading it, and did not lmow that they were incorrect.
The jury evidently found that the application was so made out and so signed without the knowledge of the signer that the answers were incorrect. We are not “satisfied” that such a finding was clearly against the weight of the evidence. The testimony was directly conflicting. The agent of the company, Gallagher, testified no.t only that Mary Jane Giblin signed the application (which is conceded), but that she did it in his presence, and that previously he had asked her all the questions in the application and had taken down the answers that she gave.
If this testimony was all that bore on the subject there would be no doubt in our mind that the verdict should be set aside as against the evidence, for, as the court implied by some of the instructions given on behalf of the defendant, some of the answers were plainly material and plainly false, nor could the applicant in any proper use of language in such a case be said to have signed the application “without reading it.”
But the applicant’s mother, Anna J. Giblin, testified to an entirely different state of facts.
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Mr. Presiding Justice Brown
delivered the opinion of the court.
We think it well to note at the outset of this opinion— what we have heretofore frequently called attention to—that the rule we have to apply regarding reversal for error differs in cases coming to us from the Municipal Court of Chicago from that applicable to cases from other courts.
The following rule as to a case coming from the Superior Court was laid down in the opinion of the Supreme Court in Crane Co. v. Hogan, 228 Ill. 338:
“A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial. The court said in Kirby v. People, 123 Ill. 436, that the rule is not that the court must see that the error worked injury to the party complaining, but that the Court will not affirm where error has intervened unless it shall appear from the whole record that such error could not reasonably have affected the result.”
This, however, cannot be the rule under the Municipal Court act, which as to cases of the fourth and fifth classes expressly provides that “Ho order or judgment sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report or reports, signed by said Judge that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said Municipal Court directly affecting the matters at issue between the parties.”
On account of this distinction we regard it as unnecessary to pass on some of the questions elaborately argued by counsel in the extended briefs filed in this cause. We have given careful attention to them all, but a brief analysis of the controlling questions in the case alone will be sufficient to show our reasons for our decision.
We do not think it necessary to discuss some of the rulings on evidence or some of the questions of insurance law elaborately argued. Whether representations concerning the health of the insured are not, as a matter of law, material to the risk, so that it is erroneous to leave their materiality to the jury, is one of them. And so too, in the view we take of the case, is the question whether the answers complained of were warranties or merely representations, although we have no hesitation in expressing our opinion that the trial judge Was right in considering them as representations merely.
A consideration of some of the instructions given reveals, in our opinion, the controlling factor in the jury’s decision. One of the instructions, for example, as hereinbefore stated, told the jury that if they believed that Mary Jane Giblin made the answer in the application that she had never suffered from accident of any kind, and further believed that she had suffered from accident of any kind before the making of the application, they must find for the defendant.
This was equivalent to telling them that unless they found that Mary Jane Giblin did not make the answer in the application, they must find for the defendant, for that she had suffered from an accident was proven and admitted in the case. But substantially is the same thing true, so far as the proof is concerned at least, concerning the applicant’s having “a serious illness,” her suffering from “fits and convulsions,” and “the spitting of blood.” It inhered, therefore, in the verdict of the jury, in our opinion, that they found that the answers in question were not the answers of the applicant; in other words, that Mary Jane Giblin did not make them. That the question whether or not she did make them was intended to be left to the jury, is evident not only from the phrasing of the instructions on behalf of the defendant, but as well from the second and third instructions given on behalf of the plaintiff, and from the whole course of the trial. Therefore, unless we are “satisfied” that the judgment is contrary to the law and the evidence on this question, or “resulted” from errors which affected the decision of the jury on this question, we ought not to interfere with the verdict and judgment. The determination of the cause is much simplified for ns by this narrowing of the issue. If any one of the answers complained of was not Mary Jane Giblin’s, no one of them was. It is conceded that the signature at the foot of the application, witnessed by “P. Gallagher” is hers, but the contention of the plaintiff was and is that the answers being, as it is admitted, written by Gallagher, who was an agent of the Company, were written and presented to Mary J ane Giblin under such circumstances and in such a way as to prevent her signature to the application being properly held to make them hers. They were, it is contended, those of the company’s agent, and it is hound by them.
The first question, then, for our decision is whether we are satisfied that the finding of the jury, which, as we have said, inhered in their verdict that the answers were not hers, was clearly against the weight of the evidence under the instructions which were given by the court; and the second, whether we are satisfied that the law was so incorrctly stated by the court on this point as to have resulted in that verdict.
The instructions of the court which related to this question are the second and third tendered by the plaintiff, and have been set forth in the statement prefixed to this opinion.
Under them the jury were practically left to say whether, even if the answers were false, the defendant had proven by a preponderance of evidence that they were the representations of the insured, and were told that they were not her representations, although she signed the application, if the agent of the company filled out the application including them, and she signed it without reading it, and did not lmow that they were incorrect.
The jury evidently found that the application was so made out and so signed without the knowledge of the signer that the answers were incorrect. We are not “satisfied” that such a finding was clearly against the weight of the evidence. The testimony was directly conflicting. The agent of the company, Gallagher, testified no.t only that Mary Jane Giblin signed the application (which is conceded), but that she did it in his presence, and that previously he had asked her all the questions in the application and had taken down the answers that she gave.
If this testimony was all that bore on the subject there would be no doubt in our mind that the verdict should be set aside as against the evidence, for, as the court implied by some of the instructions given on behalf of the defendant, some of the answers were plainly material and plainly false, nor could the applicant in any proper use of language in such a case be said to have signed the application “without reading it.”
But the applicant’s mother, Anna J. Giblin, testified to an entirely different state of facts. She swore that the agent Gallagher, who had had previous business with the family, called at her house, where her daughter resided with her, but that he had no conversation with the daughter nor even saw her, but after a conversation with the mother about the kind of a policy to be taken, sat down and filled in the answers in the application, asked only one question (which was as to the age of the applicant), gave the mother a pencil and the application, told her to take the application to her daughter, who was in the kitchen, and have her sign it at the bottom and it would “be all right.” Mrs. Giblin says that she took the application and pencil and carried it to her daughter, who signed her name immediately and gave it back to her (Mrs. Giblin), and she carried it back to the agent, who went away with it. The next time Mrs. Giblin saw the agent her daughter was dead, and this question of the answers in the application had been raised. She says that being at the house of a friend, one Mrs. Killeen, in ¡November, 1908, she met Gallagher, who came there and took the application of her friend for a policy, writing it up himself and asking her friend to sign her name. Thereupon Mrs. Giblin said, “That is the way you done in my house with my girl. When you filled out her application you asked no questions and made all this trouble for us,” and Gallagher neither admitted nor denied it.
Mr. Gallagher, on the other hand, testifying as to the same occurrence, says Mrs. Giblin said, “You have not asked the same questions as you asked Mary Jane. How is that?” To which he replied, “I have asked all that is necessary.”
Mrs. Killeen corroborated Mrs. Giblin as to this conversation and contradicted Gallagher, and added to her testimony that Gallagher “looked funny in his face” on account of it.
However this testimony might have impressed us had we been jurymen, we do not think that we should disturb a verdict because it was based on Mrs. Giblin’s version of what took place. And if her version was correct, we think the jury were justified in finding that the agent of the company filled out the application, and that the applicant signed it without reading it and without knowing what the answers were and, of course, therefore, without knowing that they were false. That they did so find we are “satisfied,” and are equally “satisfied” that their verdict was the result of the application to the testimony which they had heard of the instructions given to them by the court on this one question.
We are therefore brought to the ultimate question for our decision: Was the court right in instructing the jury in effect that notwithstanding her admitted signature to the application, the insured could not be regarded as giving the answers or making the representations therein contained unless she had read the same or knew what they were ?
We have carefully considered this question, and are unable to hold that it was. The implications of the instructions go too far.
It is undoubtedly true that under circumstances of fraudulent conduct on the part of the agent to secure the insurance and his commissions (such as writing down one answer when another was given, or securing a signature to a blank, and afterwards filling in the matter supposed to be signed by the applicant, or securing the mark of one who can not read, or through illiteracy can read but imperfectly, without full explanation of the contents of the paper to which the mark is put), the answers or representations to be found in the application will be treated entirely as to the utterances of the company, through its agent, and not those of the applicant at all. Such, for example, is the doctrine of cases like Insurance Company v. Wilkinson, 13 Wallace, 234, in the Supreme Court of the United States, Royal Neighbors of America v. Boman, 177 Ill. 27, in the Supreme Court of Illinois, and Maloney v. The North American Union, 143 Ill. App. 615, in this court. But in the Wilkinson case Mr. Justice Miller in his opinion says: “It is not denied that he” (the applicant) “signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond question that this party did not intend to make that representation when he signed the paper and did not know he was doing so, and in fact had refused to make any statement on that subject.” In the Boman case the court found that the applicant made truthful answers, but that the agent of the company inserted untruthful ones, and the gist of the opinion is: “Where one makes true answers to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company.”
In the Maloney case the signature was obtained to a blank on the urging of the agent of the company, and the statements filled in by Mm days afterwards.
These cases and others like them fall short of holding that the signing by a person of fair education and intelligence, without reading and without actual knowledge of its contents, of a blank containing answers prepared by the agent of the company, but without urging or fraudulent representations on his part, and out of his presence, can be treated as nugatory because of the ignorance thus voluntarily accepted.
We think it a dangerous doctrine to give the formal signature to a contract as slight importance as this holding would imply. But we think that the instructions taken together involve that holding, and are “satisfied” that the verdict and judgment resulted therefrom. Therefore the judgment is reversed and the cause remanded.
Reversed and remanded.