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Liptak v. Sec. Ben. Ass'n - 350 Ill. 614, 183 N.E. 564 (1932)

Rule:

The right to open and close is not a matter resting merely in the discretion of the trial judge but is a substantial right in the person who must introduce proof to prevent judgment against him. The party who asserts the affirmative of an issue is entitled to begin and reply.

Facts:

The insurance beneficiary brought an action against the insurer under a life insurance policy that the insurer claimed had lapsed for failure to make a payment on time. The insurer admitted the policy had been issued and that the insured as a member of the benefit organization had died. It filed a special plea, however, that according to its bylaws the insurer was not liable under the policy. The insurer alleged that the policy had lapsed due to the failure of the insured to make a payment on time. The trial court ruled in favor of the beneficiary but the ruling was reversed on appeal.

Issue:

Does the insurer have the right to open and close?

Answer:

Yes.

Conclusion:

The court held that it was error for the trial court to refuse to allow the insurer to open and close the proceedings. The court noted that the right to open and close went to the party with the burden of proof. The beneficiary had nothing to prove in the action against the insurer. The only matter in dispute was the insured's special plea. The right to open and close was a substantial right, the denial of which required reversal.

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