Hamberg v. Mut. Life Ins. Co. of New York

• Decision Date: 17 April 1944
• Docket Number: Gen. No. 42887.
• Citation: 322 Ill.App. 138,54 N.E.2d 227
• Parties: HAMBERG v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: United States Appellate Court of Illinois

322 Ill.App. 138

54 N.E.2d 227

HAMBERG

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Gen. No. 42887.

Appellate Court of Illinois, First District, First Division.

April 3, 1944.

Rehearing Denied April 17, 1944.

Appeal from Circuit Court, Cook County; Robert J. Dunne, Judge.

Action by Virginia B. Hamberg against the Mutual Life Insurance Company of New York to recover death benefits accrued under a policy issued by defendant on the life of Stanley H. Hamberg, deceased. Defendant counterclaimed. Verdict and judgment for plaintiff, and defendant appeals.

Reversed, and judgment entered for defendant. Winston, Strawn & Shaw, of Chicago (Louis W. Dawson, of New York City, and George B. Christensen, Gerard E. Grashorn, and Edward J. Wendrow, all of Chicago, of counsel), for appellant.

Arthur J. J. Welsh and Julius S. Neale, both of Chicago (Walter E. Moss, of Chicago, of counsel), for appellee.

NIEMEYER, Justice.

Defendant appeals from a judgment for $1,203.22, the amount of death benefits then payable to plaintiff in installments under an insurance policy for $5,000, issued August 14, 1940 by defendant on the life of Stanley H. Hamberg.

Over plaintiff's objection the cause, commenced in the Circuit Court of Cook county, was transferred to the United States court, where a trial resulted in a verdict for defendant; the judgment entered on this verdict was vacated and the cause remanded to the state court; the complaint was amended, defendant answered and filed a counterclaim seeking annulment of the policy because of misrepresentations in the application as to Hamberg's medical history. The trial resulted in a verdict and judgment for plaintiff; defendant moved for judgment, notwithstanding the verdict, and also filed a motion for a new trial. Both motions were denied.

When he applied for the policy the insured was 29 years of age, about 5 feet 10 or 11 inches in height and weighed about 192 pounds; he had played football in college and carried on his athletic activities afterwards; in the evening of June 11, 1940 he complained of numbness in both arms and pain and numbness between the shoulders; his wife, the plaintiff, called Dr. Mackenzie, who examined his throat, ears, eyes, chest, lungs, heart, abdomen and reflexes and found a temperature of 102 Fahrenheit and a blood pressure of 180 systolic and 130 diastolic. The doctor says the normal temperature is 98.4, and normal blood pressure for a man 29 to 30 years of age is 150 or less systolic, and 100 or less diastolic. The doctor told Hamberg to stay in bed until his temperature had been normal for 24 hours and then come to the doctor's office; aspirin tablets were prescribed; the insured went to work the next morning. June 18 he was given a further examination by Dr. Mackenzie, who wrote him the following day stating that his blood specimen was normal but that on microscopic examination a considerable number of pus cells were found in the urine; the doctor asked that Hamberg see him in about 10 days; that with a view to making a diagnosis he might investigate whether the pus cells came from the bladder, kidney or prostate or whether they were the result of Hamberg's recent febrile upset. Hamberg did not see the doctor again until November 19. He then told the doctor that he had played touch football the Sunday before and went to bed feeling fine, but awoke about 2 o'clock in the morning with a feeling as of a band around his chest; that he could not take a deep breath and felt more comfortable sitting up than lying down; that he felt all right the next few days, but on walking a few blocks in the cold would get a pain in the triceps region in both arms and a feeling of pressure over the whole chest area; that after playing touch football the day before his visit he again had pain in the arms and a numb, dull pain in the heart area after walking several blocks in the cold; that these pains disappeared a short time after he went inside and sat down. On physical examination the doctor found the heart apparently normal and the blood pressure 152 systolic and 102 diastolic; however, he told Hamberg that his symptoms were indicative of disease of the heart; he gave him some nitroglycerin tablets to dilate the blood vessels very rapidly and to relieve the pain in the region of the heart, and advised him to have an X-ray of the chest to see if the heart was enlarged, and to have an electrocardiogram made right away and go to the hospital for further examination, and that they should probably keep him in bed for a prolonged period if the electrocardiogram showed the heart was damaged. December 4, 1940 Hamberg was examined by Dr. Donkle, a specialist in diagnostic work, who found him suffering from shortness of breath, pain around his chest and dizziness; he had a rapid heart and some discoloration about the mouth and hands; an electrocardiogram was taken the following day by another doctor; this shows evidence of myocardial damage. December 13 the insured was found dead, sitting in his automobile in a parking lot near his place of business. Dr. Donkle, as attending physician, certified the cause of death as myocarditis and testified that this is a chronic affair and had been in existence for several months.

Hamberg applied for insurance August 2, 1940; in answering certain questions in his application he stated that he had not consulted any physician or practitioner for any purpose in the preceding 5 years; that albumin, sugar or other abnormality had never been found in his urine; that he had never had a blood examination or other special laboratory test and had never had abnormal blood pressure. In its affirmative answer and counterclaim defendant alleges that these, and other answers which we need not consider, were falsely and fraudulently made, with intent to defraud and cheat the defendant, and that if the insured had answered truthfully defendant would not have issued the policy. Plaintiff filed a lengthy reply, admitting the answers alleged to have been made, denying that they were wholly and knowingly false, and seeking to qualify and minimize their effect. No further pleadings were filed, and plaintiff contends that by its reply “the plaintiff in apt language showed that the supposed misrepresentations of Stanley H. Hamberg were immaterial,” and that, “as the pleadings now stand the immateriality of the supposed misrepresentations are admitted.” This position is untenable. To hold otherwise would unnecessarily extend the pleadings to be filed in order to arrive at an issue, and defeat the purpose of the present practice act. Defendant could traverse the reply only by repeating the allegations of its counterclaim.

Defendant contends that the effect of the misrepresentations charged is determined by section 154 of the Insurance Code of 1937 (Ill.Rev.Stat.1943, chap. 73, par. 766), and that it is no longer necessary to consider or attempt to reconcile the numerous cases dealing with policies in force prior to the enactment of the Code; that under this section misrepresentations, as well as false warranties, defeat recovery on a policy, if made with intent to deceive, or if they materially affect the acceptance of the risk or materially affect the hazard assumed by the company. Plaintiff does not directly answer this position of the defendant. She cites the provisions of the policy that “All statements made by the Insured shall in the absence of fraud, be deemed representations and not warranties,” and, relying on decisions prior to the enactment of the...