Campbell v. Prudential Ins. Co. of America

• Decision Date: 15 January 1958
• Docket Number: Gen. No. 47237
• Citation: 147 N.E.2d 404,16 Ill.App.2d 65
• Parties: Harry CAMPBELL, Guardian of the Estate of Gerald Dennis Campbell, a Minor Plaintiff-Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation, Defendant- Appellant.
• Court: United States Appellate Court of Illinois

Page 404

147 N.E.2d 404

16 Ill.App.2d 65

Harry CAMPBELL, Guardian of the Estate of Gerald Dennis Campbell, a MinorPlaintiff-Appellee, v.The PRUDENTIAL INSURANCE COMPANY OF AMERICA, a CorporationDefendant- Appellant.

Gen. No. 47237.

Appellate Court of Illinois, First District, Third Division.

Jan. 15, 1958.

Peterson, Lowry, Rall, Barber & Ross, Chicago, Owen Rall, William A. Cannon, Chicago, of counsel, for appellant.

Askow & Stevens, Chicago, Irwin J. Askow, Richard James Stevens, Chicago, of counsel, for appellee.

BURKE, Presiding Justice.

The Prudential Insurance Company of America issued to Lloyd J. Campbell two Endowment At Age 65 Years policies on November 9, 1953 and May 17, 1954, for $1,000 and $750, respectively, at a time when the insured was 42 years of age.Both policies contained provisions for payment of the principal amounts in the event of the death of the insured.He died on July 6, 1954.Gerald Campbell, a minor, the beneficiary, by his guardian, sued the insurer.A trial resulted in a verdict and judgment for $1,750, to reverse which the defendant appeals.

Defendant's theory is that the insured's confinement in the Cook County Hospital for one month in 1948, his operation there for an abscessed peptic ulcer and his subsequent recurrent attacks were material to the acceptance of the risk, and the evidence in this respect being neither contradicted nor denied, no question of fact was presented for submission to the jury.Defendant maintains that it was entitled to a directed verdict for the reason that its affirmative defense of material misrepresentations was proved and not denied by any evidence on plaintiff's behalf.Plaintiff's theory of the case is that there were substantial controversial questions of fact for submission to the jury: (1) whether misrepresentations as to an ulcer operation occurring more than five years prior to the applications for the policies were material to the risks, and (2) whether such misrepresentations were made with intent to deceive the insurance company, and that the trial court correctly submitted the questions of fact to the jury.In order to defeat the policies used upon it was necessary for the defendant to prove its affirmative defense of misrepresentations at the time of the execution of the applications.Where evidence of an affirmative defense is offered it is proper to direct a verdict for the defendant even though all averments of the complaint are proved, if the evidence of the affirmative defense is not contradicted or explained.Wallner v. Chicago Consolidated Traction Co., 245 Ill. 148, 152, 91 N.E. 1053;Cohen v. New York Life Ins. Co., 256 Ill.App 345;Hassey v. A. C. Allyn & Co., 306 Ill.App. 37, 42, 28 N.E.2d 164.

The insured had been a patient at the Cook County Hospital from August 18 to September 18, 1948, during which period Dr. Morris T. Friedell performed an operation for an abscessed duodenal ulcer.Dr. Friedell testified that he performed what is called a gastrojejunostomy, which is the connection of the stomach to the small intestine, and that its purpose is to by-pass the first portion of the small intestine which is called the duodenum.He also stated that the second portion of the operation is known as a vagotomy, which consists of dividing and removing a small portion of two large nerves and their branches which come into the stomach.The witness stated that the patient's pathology showed a subacute inflammatory mass the size of an orange over the superior aspect of the first portion of the duodenum.The pathology was considered serious.The hospital records show the patient 'doing very well' and indicated the patient was recovering very well from the operation.The witness who performed the operation and who has performed two or three thousand similar operations, testified that there is a fairly high percentage of cures following such an operation, and that insured's condition was as good as he would like to see it after the operation.The witness also stated that from the history in the Cook County Hospital record it appeared that the patient in 1943 had been operated at St. Mary's Hospital for a perforated peptic ulcer.This history showed that in June, 1947, the patient began to vomit, became weak and was given seven transfusions at St. Mary's Hospital.Preceding his admission to the Cook County Hospital the patient lost 30 pounds in weight and had recurrent vomiting episodes every night.

In answer to certain health questions in the applications the insured denied having had any illness or operation within 10 years preceding the application dates, also that he had not consulted or had been treated by a doctor within five years preceding the dates, as well as denying that he had ever been confined to a hospital or over had ulcers or lost time from work on account of illness.In answer to the question in the applications as to whether the applicant had lost time from work on account of illness during the preceding year applicant answered: 'No.'The insured had been employed regularly by Cribben & Sexton Company as foreman in the japanning shop for 28 years up to his death.He worked a full week when work was available and performed his work properly.He appeared to be in good health except for the periods when he was off for illness.He worked from 90% to 92% of the time.For a period of a year prior to his death the insured visited at the home of his brother about twice a month, walking part of the way.He had occasional meals at his brother's home.There was nothing about his eating that attracted attention.The insured died on July 6, 1954.The coroner's certificate of death, admitted into evidence over defendant's objection, gave the cause of death as coronary thrombosis, with a further statement that the interval between onset and death was 'Unknown.'There had been no previous history of coronary thrombosis or any heart condition anywhere in the insured's medical history.

The records of insured's employer show that in 1953 and 1954he had been off work on several occasions.One period of absence was from September 7, 1953, to September 28, 1953, another from October 26, 1953, to November 16, 1953, and still another from January 20, 1954, to February 22, 1954.In these cases medical statements by the insured's physician were given the employer by the insured.These indicated that insured's absence was caused by a possible recurrent peptic ulcer and gastrointestinal disturbance.It also appears that insured had been off work on other occasions.The witness who testified as to the work records stated that since 1943 insured's absences were twice the average.Dr. Leslie Schwartz testified that he had seen the insured on several occasions in 1952 and saw him at his home on March 16, 1953, on which occasion insured complained of loss of weight, vomiting and abdominal distress.He was seen again by Dr. Schwartz on September 21, 1953, November 6, 1953 and January 29, 1954, with similar complaints.On the latter date Dr. Schwartz suggested hospitalization, which insured refused.Dr. Martin Sternback testified he saw the insured in March or April, 1954, at his home and may have seen him on three or four occasions during this period.He thought insured had pneumonia, prescribed an antibiotic and suggested that insured be hospitalized for further tests.During this time insured complained of epigastric distress and also thought he had passed some gravel in his urine.Dr. Sternback then told him that he may have passed a kidney stone and advised X-ray study.

Dr. Clifton L. Reeder, Medical Director of the Continental Assurance Company, testified that in connection with his duties as Medical Director he passes on applications for life insurance; that he is familiar with the type of applications used by various companies, and that the correct answers to questions propounded become very important in evaluating the risk for the reason that the company is dependent upon the applicant's answers for the evaluation of health history.The history of a previous operation is most important for the reason that doctors do not always inform their patients of their true condition.Correct information affords an opportunity to inquire as to the true state of the applicant's health.He also testified that an abscessed peptic ulcer would infer a probable perforation through the wall of the stomach, and from an insurance underwriting standpoint an applicant having had an operation for an abscessed peptic ulcer is not an insurable risk, also that it was the practice of insurance companies generally during 1948 and subsequent thereto to reject an applicant who had an ulcer operation with subsequent complaints of epigastric distress.This witness also testified that the answers 'No' to questions inquiring as to whether the applicant within a fixed period of time was operated, received medical treatment at a dispensary or ever had an ulcer, are significant, and if the answers had been 'Yes' to these questions, a medical examination would have been required, and in addition thereto inquiry would have been made of the attending physicians.Inquiry would also be made if the applicant answered 'Yes' to the question as to whether he had been absent from work on account of illness during the preceding year.Dr. Reeder testified that if there is a peptic ulcer condition and a successful gastrojejunostomy, the insurance company frequently underwrites the risk, and that if the applicant does not apply for insurance until five years after surgery and had no trouble whatsoever from the time of the operation, the insurance company would take him at the regular premium.The witness also testified that insurance companies always have the right to request a medical examination before issuing a policy of insurance, and that if a person dies and has the appearance of a coronary thrombosis you may be sure that it was not death from a peptic...