Baricevic v. Peoples Life Insurance, 256 Ill. App. 438 (1930)

Feb. 12, 1930 · Illinois Appellate Court
256 Ill. App. 438
Frank Baricevic, Appellee, v. The Peoples Life Insurance Company, Appellant

Frank Baricevic, Appellee, v. The Peoples Life Insurance Company, Appellant.

Opinion filed February 12, 1930.

W. J. McDonald and T. S. Morgan, for appellant.

McGlynn & McGtlynn, for appellee.

Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee sued on a policy of insurance on the life of his wife. To a declaration in the usual form appellant filed the general issue and three special pleas. It averred in each of the special pleas that the insured came to her death as the result of a criminal abortion. The first charged that the abortion was procured by the insured; the second, that it was brought about by the insured and appellee; the third, that it was produced by Charles L. Moeller as a result of a conspiracy. Demurrers were sustained to the special pleas and the trial resulted in a verdict and judgment for $1,000. The only question presented for our consideration is the sufficiency of the special pleas.

Appellant does, not claim that it is relieved from liability by* reason of any provision of the insurance contract. It insists, that, in the absence of such a stipulation, it would be against public policy to allow *439appellee to recover under the facts averred in the special pleas. Under Cahill’s Illinois Statutes, ch. 38, ¶ 15, the procurement of an abortion is not a criminal offense unless it is done for a purpose other than to preserve the life of the mother. An indictment must negative the necessity to save the mother’s life, Beasley v. People, 89 Ill. 571; State v. DeGroat, 259 Mo. 364.

It is very evident that the procurement of an abortion, necessary to preserve the life of the mother, is not a crime and cannot be contrary to public policy. To raise the question sought to be presented appellant should have averred that the abortion was not necessary to preserve the life of the insured. There is no such averment in any of the special pleas. For that reason it is unnecessary to decide whether a recovery by appellee would be against public policy if he and the insured, or either of them, had procured an abortion that was not necessary to preserve the life of the deceased. The special pleas presented no defense to the action, and the court properly sustained demurrers thereto. The judgment is affirmed.

Affirmed.