delivered the opinion of the court:
It is first contended that the Appellate Court erred in its finding of fact, and in reversing the case without remanding the same to the superior court for a new trial. The Appellate Court, under section 88 of the Practice act, (3 Starr & Cur. Stat. — 2d ed. — chap. 110, p. 3114,) has no power to make a finding of fact unless it finds the facts, in whole or in part, different froth the finding of the trial court. (Gammon v. Huse, 100 Ill. 234.) In this case the trial court’heard only the evidence of the defendant, and, on the motion of the plaintiffs based upon that evidence, held, as a matter of law, that no defense, under the stipulation entered into by the parties, had been established, and directed a verdict in favor of the plaintiffs. The Appellate Court, under the statute, was not authorized to treat the question of law thus raised and passed upon by the trial court as one of fact, and, by making a finding of fact, reverse the cause without remanding the same for a new trial. The action of, the Appellate Court in making such finding of fact, and in reversing the cause without remanding the same for a new trial, was therefore erroneous.
It is next contended that the Appellate Court erred in holding that the trial court should have submitted the question of fact as- to whether the deceased came to his death by suicide, to the jury. The evidence in this record fairly tends to establish the fact that the deceased came to his death by his own hand. He was found dead in his barn, near his house. His death was caused by a shot in the head which had been discharged from a revolver belonging to him, and which, at the time of its discharge, was held close to his head. The revolver was found near the body, behind or between some boxes or cases, where it was pointed out by a daughter of the deceased. He had a large amount of insurance upon his life and was insolvent. We think the evidence was sufficiently strong to entitle the defendant to have had the issue of suicide submitted to the jury, and that the trial court erred in instructing the jury peremptorily to find for the plaintiffs.
It is further contended that the agreements on the part of the deceased, contained in the application for the insurance, that no recovery should be had in the event “I commit suicide, whether sane or insane,” and “I also agree that no action of law or suit in equity shall be maintained or recovery had on said policy * * * unless such action or suit be commenced within one year from the date of my death,” were not binding on the beneficiaries. The application for the insurance is referred to in the insurance contract and made a part thereof, and under the repeated decisions of this and other courts it is binding upon the beneficiaries named in the policy. Where the intent to make the application a part of the policy clearly appears, the court, no matter what the phraseology may be, will read the application into the contract of insurance and construe the contract of insurance and the application together. Supreme Council of Royal Templars of Temperance v. Curd, 111 Ill. 284; Commercial Mutual Accident Co. v. Bates, 176 id. 194.
It is also contended that the trial court erred in refusing to allow Cross to testify to what the daughter of Helliwell said to him at the time she told him where the revolver would be found. The court permitted Cross to state that she told him where he would find the revolver, but he was not permitted to testify to the remainder of her conversation. . Cross was called by the defendant, and what the daughter stated to him was hearsay evidence and clearly incompetent. If the defendant desired to prove what the daughter knew about the revolver being placed in the position where it was found it should have called her as a witness. Her knowledge as to how the revolver came to be in the place where it was found by him could not be proven by her statements to Cross.
The court did not err in refusing to permit Dr. Mathews to express an opinion as to whether the wound was accidentally or purposely inflicted. That was a question for the jury to pass upon after they had been put in possession of the facts surrounding the death of Helliwell. Neither was it competent to prove that no hue and cry was raised after the death of Helliwell, or an attempt made to apprehend his supposed murderer.
The court also refused to permit Stelling, the agent who took the application, to testify that the assured, immediately after signing the application and before the policy was delivered, followed him out into the hall of the Chicago Stock Exchange Building and there asked him if his company paid losses on suicides, and on learning it did not, made some remark about canceling the application. We think" this evidence was admissible. It tended to show that the insured had in his mind the question of suicide at the time he took out the insurance, and should have been admitted as bearing upon the question whether or not he took his own life.
The judgments of the Appellate and superior courts will be reversed and the case remanded to the superior court for a new trial.
Reversed and remanded.