Nyman v. Mfrs' & Merchants' Life Ass'n

• Decision Date: 09 April 1914
• Citation: 104 N.E. 653,262 Ill. 300
• Court: Illinois Supreme Court
• Parties: NYMAN v. MANUFACTURERS' & MERCHANTS' LIFE ASS'N.

262 Ill. 300

104 N.E. 653

NYMAN

v.MANUFACTURERS' & MERCHANTS' LIFE ASS'N.

Supreme Court of Illinois.

Feb. 21, 1914.

Rehearing Denied April 9, 1914.

Error to Appellate Court, second District, on Appeal from Circuit Court, Winnebago County; Arthur H. Frost, Judge.

Assumpsit by Carl O. Nyman against the Manufacturers' & Merchants' Life Association. There was a judgment for plaintiff (182 Ill. App. 511), and defendant brings error. Reversed and remanded.

Botsford & McCarthy, of Elgin (R. K. Welsh, of Rockford, of counsel), for plaintiff in error.

J. E. Goembel, of Rockford (Walter E. Healy, of Elgin, and G. R. Beverly, of counsel), for defendant in error.

FARMER, J.

Carl O. Nyman, defendant in error (hereafter called plaintiff), brought an action of assumpsit in the circuit court of Winnebago county on December 24, 1910, against the Manufacturers' & Merchants' Life Association, plaintiff in error (hereafter called defendant), to recover on a certain contract of insurance or benefit certificate issued by defendant on the life of Anna S. Nyman, in which benefit certificate plaintiff, her son, was named as beneficiary. The amount of such benefit certificate was $2,000.

The declaration alleged the issuance on April 15, 1910, and subsequent delivery, of the benefit certificate to insured, naming plaintiff as beneficiary; the payment of assessments by insured as they became due; the death of insured June 22, 1910; that proof of death was furnished the defendant about June 30, 1910; and that defendant had not paid plaintiff, as beneficiary, the amount of the benefit certificate ($2,000), but refused to do so.

Defendant filed the general issue and three special pleas. The first and second special pleas averred that plaintiff's only cause of action set out in the declaration was founded upon the alleged contract of insurance, which was made up of a benefit certificate, an application for membership, and the by-laws of the association; that the insured, Anna S. Nyman, agreed and warranted that the answers to the questions in said application made by her were true; that she agreed such answers should form a part of the contract of insurance; that in and by the said benefit certificate it was agreed that the warranties were part of the contract, and the certificate was issued in reliance upon the warranties in the application and the truth of the answers therein contained. The first special plea avers the application of Anna S. Nyman to defendant was made April 11, 1910, and that in said application she was asked the question. ‘Are you in good health?’ to which she answered, ‘Yes.’ The plea avers that said answer was untrue, and that said Anna S. Nyman was not then in good health, but was, at that time, afflicted with Bright's disease and other sickness, by reason of which the contract of insurance was void and of no effect. The second special plea avers that in her application Anna S. Nyman was asked, ‘When were you last attended by a physician?’ to which question she answered, ‘About two years.’ The plea concludes substantially as the first special plea. The third special plea avers that the benefit certificate contained, among other things, the provision: ‘This certificate to take effect and be in force only on the day received by the member and on condition that she then be in good health.’ The plea avers that on the date of the delivery of the certificate Anna S. Nyman was afflicted with, and was then being treated for, a fatal malady or disease known as Bright's disease; that said Anna S. Nyman knew she was not in good health; and that the defendant association did not learn of that fact until after her death. Copies of the application were filed with and made part of the special pleas.

Plaintiff filed replications to the first and second pleas, averring that the answers to the questions set out in said pleas were true, and to the third plea, that Anna S. Nyman was in good health when the certificate was received by her, and was not suffering from the malady known as Bright's disease. A trial by jury resulted in a verdict and judgment in favor of plaintiff for the amount of the certificate, with interest thereon. On appeal by defendant to the Appellate Court for the Second District, the judgment was affirmed, and the record is brought to this court for review by writ of certiorari.

At the conclusion of all the evidence defendant moved the trial court to direct a verdict in its favor. The action of the court in overruling this motion and in giving one instruction for plaintiff are the questions raised upon the record in this court.

[1] Defendant insists the evidence shows that the statements of Anna S. Nyman in her application that she was in good health and that it had been two years since she was last attended by a physician were false; also that, when the certificate was delivered to said Anna S. Nyman April 19, 1910, she was fatally ill with Bright's disease; that she knew she was so afflicted; and that defendant did not know it until after her death. Whether the answers made to the questions in the application for the certificate were true or false, and whether the insured was afflicted with Bright's disease when the certificate was delivered to her, were by the pleadings made issues of fact to be determined from the evidence. The error assigned on the refusal of the instruction to direct a verdict for defendant renders necessary an examination of the evidence.

The application for the certificate was made April 11, 1910, and recites that Anna S. Nyman is by occupation a housewife; that she is 45 years old; and that the beneficiary named in the certificate is her son. It further recites that the declarations in the application were made and signed by the applicant in the presence of the medical examiner of defendant. In answer to questions in said application, the applicant stated she was in good health and was last attended by a physician about two years before. The medical examiner of defendant in his report stated that, after a physical examination of the applicant and chemical examination of urine, he found her pulse 72 and regular; temperature 98 2/5; height 5 feet 7 inches; weight 127 pounds; chest measurement 32; expiration 30; inspiration 34; and that upon examination of the urine the reaction was acid, specific gravity 10.20, and that there was no albumen or sugar. The medical examiner stated the applicant was a first-class risk. This examination was made April 11, 1910. Thereafter the certificate was issued, and on the [262 Ill. 304]19th of April, 1910, it was delivered by a representative of defendant to Anna S. Nyman. On that day she consulted Dr. Hanson at his office. The doctor testified he found her suffering from gastritis, catarrh of the stomach, and dropsy or swelling of the legs, also from an accumulation of water in the abdominal cavity. At that time the doctor did not examine her urine, but did examine it the 21st of April. He found it to contain albumen, and diagnosed her principal trouble as Bright's disease. He testified it would be difficult to tell how long she had been so afflicted, but the disease was in a chronic form, and might have existed two or three months, or probably longer. He testified it must have existed at least two months or more. He treated Mrs. Nyman until the 18th or 19th of May, during which time he saw her almost every day, made several examinations of the urine, and testified she was suffering from Bright's disease during all that period. Dr. Fitch examined her on May 20th...