Johnson v. Country Life Ins. Co.

• Decision Date: 03 April 1936
• Docket Number: Gen. No. 8985.
• Citation: 284 Ill.App. 603,1 N.E.2d 779
• Parties: JOHNSON v. COUNTRY LIFE INS. CO.
• Court: United States Appellate Court of Illinois

284 Ill.App. 603

1 N.E.2d 779

JOHNSON

v.COUNTRY LIFE INS. CO.

Gen. No. 8985.

Appellate Court of Illinois, Second District.

April 3, 1936.

Appeal from Circuit Court, Winnebago County; Arthur E. Fisher, Judge.

Action by J. A. Johnson against the Country Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Frank E. Maynard, of Rockford, for appellant.

Shultz & Reid and Hall & Dusher, all of Rockford, for appellee.

DOVE, Justice.

John A. Johnson, as assignee of Claire Peterson, widow of Alfred Peterson, deceased, who was the beneficiary under a life insurance policy issued by Country Life Insurance Company, instituted this suit to recover upon a policy written by the company upon the life of the said Alfred Peterson. The issues made by the pleadings were submitted to a jury, which returned a verdict for the plaintiff for $3,215, upon which judgment was rendered, and the record is in this court for review.

It appears from the record that on the 26th day of September, 1932, appellant issued the policy which forms the basis of this suit in the amount of $3,000, and it was stipulated upon the hearing that, when the policy was issued, the first quarterly premium was paid, but the insured failed to pay the second quarterly premium due December 26, 1932; that on January 26, 1933, decedent paid, and appellant accepted, $5.25 for 30 days' extension of the days of grace period, but made no further payment until August 31, 1933; that on February 26, 1933, the policy lapsed for failure to pay the premium, and so remained until on or about August 30, 1933; that on August 22, 1933, the insured made an application to appellant company for reinstatement, and on August 31, 1933, paid the back premium for one year and until the expiration of the first policy year, which was September 26, 1933; that the policy provided for a grace period of 31 days; that by the payment of August 31, 1933, the policy became effective to October 27, 1933; that on October 25, 1933, insured paid, and appellant accepted, the sum of $5.25 for an extension of 30 days' grace, which carried the policy to November 27, 1933. It further appears that on November 4, 1933, the insured died, and subsequently the beneficiary assigned, for a valuable consideration, all her right, title, and interest in the policy to appellee.

On behalf of appellant, Dr. Palmer testified that he made a post mortem examination of the body of the insured, found a duodenal ulcer which in his opinion had been forming for 6, 8 or 10 months, that he had no opinion whether the insured would have some pains by which he would have known of its presence, and that from the examination he made he could not tell with any degree of medical accuracy the date or time when the ulcer started.

Dr. Carlstrom testified that on September 1, 1933, he examined the insured for appellant and that he inquired of him if he was in good health and that the insured answered in the affirmative; that the insured told him that he had not seen any doctor recently; that he (the physician) palpitated and felt the insured's stomach, taking hold of it from the anterior surface and ran his fingers and thumb down into the soft part of the abdomen, but did not elicit any pain from the insured; that he also made a urinary analysis, and, as his examination disclosed nothing unfavorable and as the insured appeared to be in good health and stated that he was, he recommended him to the company.

Dr. Tenney testified that 8 or 9 years previous to the time of the death of the insured, he had treated him, and that the only time since then was on August 17, 1933, when he was called to the home of the insured and found him sitting in a chair rather pale, and that he (the insured) then complained of pains in his abdomen; that he made an examination and found some gas in the intestines, and concluded that he (his patient) had eaten something which disturbed the function of the gall bladder; that the condition was temporary; and that he never suspected or told him that he had a stomach ulcer. Several lay witnesses testified that in the middle of the summer and in the latter part of August, 1933, the insured had stated to them that he did not feel good or that he felt weak or that he was not well. Other lay witnesses testified that they had seen the insured almost every day for years preceding his death, working in his restaurant or on his chicken farm, and that he never complained of ill health, was of a jovial disposition, and always appeared to be in good health before and after the policy was reinstated. One of these witnesses was the special agent of appellant who secured the insured's application for the policy sued on and who also secured from him the application for reinstatement, and this witness was, at the time of the trial, employed by appellant as its agent.

Dr. Edward Weld testified that he examined microscopically a section of the ulcer taken from the body of the insured, and that it appeared to him to have all the earmarks of a chronic ulcer, that as a general rule an ulcer of that character is of long standing, and that in his opinion such an ulcer would cause distress and trouble and affect the general health from one month to ten years or perhaps longer; that in the opinion of this witness the insured was suffering from a duodenal ulcer on August 17, 1933, and that the symptoms which Dr. Tenney found on that day were caused by the presence of such an ulcer, and this physician was of the opinion that the insured, on August 22, 1933, was not in good health. This witness further testified that chronic ulcer is of gradual development and that a patient suffering therefrom has periods of remission, getting better and then getting worse.

It further appears from the evidence that the application for reinstatement of the policy is dated August 22, 1933, and was signed by the insured. In addition to stating that it was such an application, it consisted of a series of questions such as the date of the insured's birth, whether married or single, his present occupation, whether he had suffered any injury or disease, since the date of his last examination for insurance, whether any of his immediate relatives or household had died or were then afflicted with tuberculosis, whether he used beer, wine, or intoxicants, whether he had any impairment of his sight or hearing, whether he was crippled, deformed, or disabled, and finally question No. 11: “Are you at this date in good health?” to which the insured answered “Yes.” Following this and above the applicant's signature is the following: “I hereby declare that all the statements and answers to the above questions are complete and true and I agree that they shall constitute an addition to and a part of the application * * * for insurance under the above numbered policy, that they shall be subject to all the conditions and agreements contained in said application * * * and that they shall be the basis for any action taken by the company on this application.”

The evidence further discloses that the policy sued on contains the following clauses: “Grace Period. Thirty-one days of grace without interest charges shall be allowed in the payment of any premium after the first, during which time this policy shall remain in force. Incontestability. This policy shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from date of issue, except for non-payment of premium. Reinstatement. Should this policy lapse, it may be reinstated at any time upon the insured furnishing evidence of insurability satisfactory to the company and paying all premium arrears with not exceeding six per cent (6%) interest per annum, and paying or reinstating any indebtedness which existed at the time of lapse, with interest. Entire Contract. This policy and the application therefor, a copy of which is attached hereto and made a part hereof, constitute the entire contract. In the absence of fraud, the statements made in the application shall be deemed representations and not warranties, and no such statement shall void this policy unless it is contained in the written application.”

It is first contended by counsel for appellant that the statement testified to by Dr. Carlstrom to the effect that the insured had stated to him at the time he examined him in August, 1933, upon his application for reinstatement that he (the insured) had not seen any physician recently and his further answer in the application for reinstatement that he was at that time in good health were untrue; that, had the answers been otherwise, appellant would not have reinstated the policy, and, as they were material to the risk, the policy is void. In this connection counsel calls our attention to that portion of the court's instruction which told the jury that, before a false statement would defeat a recovery, appellant was required to prove that the statements were untrue, that the insured knew them to be untrue, and that he did so with intent to deceive the company.

An examination of the application for reinstatement discloses that it does not contain any question as to whether the insured had consulted any physician since the examination, when the policy was issued, so, under the provisions of the policy, no oral answer which the insured may have made to the physician to any questions propounded by him and not included in the written application for reinstatement can form any basis for a claim of misrepresentation. Joseph v. N. Y. Life Ins. Co., 308 Ill. 93, 139 N.E. 32. The only portion of the application for reinstatement which refers to an examination by a physician is embraced in a question to be answered by a female applicant over 15 years of age, and these questions were left unanswered, as they obviously did not apply to the applicant for reinstatement of this policy. The only statement in the application for reinstatement which appellant...