Zerulla v. Supreme Lodge Order of Mutual Protection

79 N.E. 160, 223 Ill. 518

• Court: Illinois Supreme Court
• Decided: October 23, 1906
• Status: Published

Opinion

Mr. Justice Farmer

delivered the opinion of the court:

This was an action of assumpsit brought in the circuit court of Cook county by plaintiff in error to recover as the beneficiary named in a death benefit certificate issued by the defendant in error to Wilhelm Jordan, brother of plaintiff in error. The first trial in the circuit court resulted in a judgment in favor of plaintiff. Upon appeal by defendant to the Appellate Court for the First District that judgment was reversed and the cause remanded. (Supreme Lodge Order of Mutual Protection v. Zerulla, 99 Ill. App. 630.) Upon the cause being tried again in the circuit court there was a verdict and judgment for defendant, and from that judgment an appeal was prosecuted by the plaintiff to the Appellate Court, where the judgment of the circuit court was affirmed, and the case is brought here by the plaintiff on writ of error.

The proofs show, and it was not denied, that Wilhelm Jordan committed suicide by hanging himself. In his application for membership in defendant in error he agreed that if his death resulted from his own suicidal act, sane or insane, then defendant in error should not be liable to the beneficiary named in the certificate. The by-laws of defendant in error also provided, that “if the death was due to the voluntary or involuntary suicidal act of the deceased member, whether he was at the time sane or insane,” no benefit shall be paid on account of the death of such member. The Appellate Court in which the judgment sought to be reversed was rendered, held, under the authority of Seitzinger v. Modern Woodmen of America, 204 Ill. 58, that the fact that Jordan committed suicide precluded a recovery, and based its judgment of affirmance of the judgment of the circuit court upon that ground.

Plaintiff in error contends that the law of the case was settled and announced by the Appellate Court the first time the case was before that tribunal and before the decision of this court in.the Seitzinger case was filed, and that the law as announced by the Appellate Court at that time must govern the future progress and determination of this case. It is argued that this is the effect of certain language used in the opinion of the Appellate Court with reference to the trial court hearing evidence upon the question as to whether Jordan was so insane as to not be able to understand the physical nature and consequences of the act that caused his death. The judgment and order of the Appellate Court reversing and remanding the case was general in its terms and contained no directions to the trial court. It was neither final nor conclusive between the parties, no appeal could have been prosecuted from it, and it was, therefore, not res judicata. (Blakeslee’s Express Co. v. Ford, 215 Ill. 230; Friedman v. Lesher, 198 id. 21; Williams v. Harris, id. 501; Board of Trade v. Nelson, 162 id. 431.) Where the Appellate Court or this court, on the first appeal to.it, announces a particular view of the law governing the case and reverses and remands the case for further proceedings in accordance with the views announced, if the case is again brought before such court for review the former decision is binding on the court making it, and the questions decided and determined by it on the first appeal are not open for re-consideration on the second appeal. But while the determination of a question of law by the Appellate Court on the first appeal may, as a general rule, be binding upon it on the second appeal, it certainly cannot be binding on this court. Nor would the Appellate Court on the second appeal, we apprehend, be "obliged to adhere to a proposition of law laid down on the first appeal,' when this court had, since the first appeal, decided the precise question contrary to the rule announced by the Appellate Court/ To so hold would lead to most illogical results.

It is not denied Jordan committed suicide, and we adhere to the rule announced in Seitzinger v. Modern Woodmen of America, supra, that under the provisions of his contract there can be no recovery in this case, whether he was sane or . insane,—and this without regard to the degree of his insanity, if he was insane at the time.

There is no merit in the contention "of plaintiff in error that defendant in error by any act or conduct ever waived its right to deny liability under the contract.

The view we take of this case renders it unnecessary to discuss any of the other errors assigned.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.