Joseph v. New York Life Ins. Co.

• Decision Date: 18 April 1923
• Docket Number: No. 13799.,13799.
• Citation: 139 N.E. 32,308 Ill. 93
• Parties: JOSEPH v. NEW YORK LIFE INS. CO.
• Court: Illinois Supreme Court

308 Ill. 93

139 N.E. 32

JOSEPH

v.NEW YORK LIFE INS. CO.

No. 13799.

Supreme Court of Illinois.

April 18, 1923.

Error to Second Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Action by Dora Joseph against the New York Life Insurance Company. A judgment for plaintiff was affirmed by the Appellate Court (219 Ill. App. 452), and defendant brings error.

Affirmed.

Hamlin, Topliff & Cooper, of Chicago (James H. McIntosh and Louis H. Cooke, both of New York City, of counsel), for plaintiff in error.

Moses, Rosenthal & Kennedy, of Chicago (Walter Bachrach, of Chicago, of counsel), for defendant in error.

DUNN, J.

The New York Life Insurance Company issued two policies of insurance on March 1, 1913, on the life of Simon Joseph for the aggregate amount of $3,000, payable to Dora Joseph, his wife, upon proof of his death during the continuance of the policies. He died on March 30, 1913, and the beneficiary brought an action on the policies on July 9, 1913, in which numerous pleadings were filed, and a judgment on the pleadings followed some six years later against the insurance company for $3,861.67, the amount of the policies, with interest. The Appellate Court affirmed this judgment, and the record has been certified to this court as a return to a writ of certiorari.

The defense which the defendant sought to make was fraud in the procurement of the policies, and the questions presented by the record are as to the sufficiency of the defense as it appears in the pleadings. The policies, which are copied in the declaration, together with the respective applications therefor, which were attached to them, were in conformity with the statute of 1907 (Laws 1907, p. 367), and were declared to constitute the entire contracts between the parties. Each contained the provision that it should be incontestable after one year, except for nonpayment of premium. The language of the policies went further than the requirements of the statute by limiting the contestable period to one year, instead of two, and by the following language which each policy contained:

‘All statements made by the insured shall, in absence of fraud, be deemed representations and not warranties, and no such statements shall avoid this policy,or be used in defense to a claim hereunder, unless it be contained in said written application, a copy of which was attached to this policy when delivered.’

The defendant filed two pleas on September 26, 1913, the first the general issue, and the second a special plea. On May 25, 1914, it filed eight additional pleas. The general issue and four of the additional pleas were withdrawn, leaving the second plea and the third, fourth, fifth, and sixth additional pleas. The plaintiff filed eight replications to the second plea, and seven to the four additional pleas. Two of these latter replications were withdrawn, leaving five replications, numbered 9, 10, 11, 12, and 13, to the four additional pleas. A demurrer by the defendant to the eight replications to the second plea was on motion of the plaintiff carried back to that plea and sustained. A demurrer by the defendant to the ninth, tenth, eleventh, twelfth, and thirteenth replications was overruled. The defendant elected to stand by its second plea and its demurrer to the replications, and a judgment was rendered against it.

The second plea alleged that the insured presented himself to a medical examiner for the defendant and requested to be examined physically and orally for the purpose of obtaining a policy of insurance on his life; that the examiner examined him orally and physically,and asked him the questions whether he had ever raised or spat blood, whether he had ever had or suffered from any of certain named diseases, whether he had consulted any physician for any ailment or illness not mentioned in the questions, and whether he had recently lost weight. To all these questions Joseph answered ‘No,’ and the examiner asked him if his answers were full, complete, and true, and he answered that they were. The examiner asked him if he believed that he was a proper subject for life insurance, and Joseph said, to the best of his knowledge and belief, he was. The plea averred that each of the answers was false, Joseph knew them to be false, knew they were to be relied and acted upon by the defendant in determining upon the issue of policies of insurance upon his life, and they were made for the purpose of defrauding and deceiving the defendant. It was averred that Joseph had for over six months been passing blood, had lost approximately 30 pounds in weight during the previous year, and prior to and at the time of the examination was under the care of a physician for inflamation of the bowels, caused by cancer of the intestines, and was preparing for an operation for the removal of the cancer; that after the operation had been performed he died on March 29, 1913, as a result of the operation; that he had been under the care of a physician for that disease long prior to the examination; that the questions and answers were each material to the risk of the contract of insurance; that the defendant and its examiner believed the answers to be true and relied upon them, and delivered the policies to Joseph; that they would not have done so, if Joseph had answered any of the questions truthfully; and that upon the discovery of the fraud the defendant on April 26, 1913, tendered to the plaintiff $140.10, being the sum received by the defendant from Joseph for the policies, with interest to the date of the tender,...