Monahan v. Fid. Mut. Life Ins. Co.

• Decision Date: 22 December 1909
• Citation: 90 N.E. 213,242 Ill. 488
• Parties: MONAHAN v. FIDELITY MUT. LIFE INS. CO.
• Court: Illinois Supreme Court

242 Ill. 488

90 N.E. 213

MONAHAN

v.FIDELITY MUT. LIFE INS. CO.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Robert W. Wright, Judge.

Action by James P. Monahan, administrator of Patrick H. Fay, against the Fidelity Mutual Life Insurance Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

Wheeler, Silber & Isaacs (Martin J. Isaacs, of counsel), for appellant.

Samuel B. King and Jule F. Brower, for appellee.

HAND, J.

This was an action of assumpsit commenced by the appellee against the appellant in the circuit court of Cook county upon an insurance policy for $3,000 issued by the appellant upon the life of Patrick H. Fay, who died on October 19, 1905. The jury returned a verdict in favor of the plaintiff for $3,275, upon which verdict the court rendered judgment, and the defendant prosecuted an appeal to the Appellate Court for the First district, where the judgment of the trial court was affirmed, and a further appeal has been prosecuted to this court. The suit was originally commenced in covenant, and after the insured had been dead more than one year (the period fixed by the policy within which suit should be brought being one year) the form of the action, by leave of court, was changed from covenant to assumpsit, and the pleadings were accordingly amended. The appellant urges that the present suit was not commenced within one year from the date of the death of the insured and that it cannot be maintained. The amendment changing the cause of action from covenant to assumpsit, and amending the pleadings to make them conform to the latter action, was properly allowed lowed under section 39 of hte Practice Act (Hurd's Rev. St. 1908, p. 1624, c. 110). Thomas v. Fame Ins. Co., 108 Ill. 91. The court did not err in permitting the amendment to be made, as the changing of the form of action was not the commencement of a new suit.

The defense sought to be made to a recovery on the policy was that the insured, in the application for the insurance, had under section 39 of the Practice Act to warranties, relative to his health and medical treatment which he had received prior to the date of the application. The policy contained the following incontestable clause: ‘If this policy shall have been in continuous force after two years from the date hereof, it shall, in the event of the death of the insured, be incontestable for the sum payable hereunder except for nonpayment of premium.’ The policy bore date September 30, 1903, and the insured died on October 19, 1905. The policy was therefore incontestable, unless the fact that the policy was not delivered until October 30, 1903, under the clause found in the policy which provided that the policy ‘shall not be operative or binding until actual payment of the initial premium and delivery of the policy during the lifetime and good health of the insured,’ and the further fact that the second premium, which fell due September 30, 1904, was not paid until October 1, 1904, showed the policy had not been ‘in continuous force’ for two years from its date. The insured paid the appellant for carrying the said insurance from September 30, 1903, and the policy provided if the policy should remain in continuous force ‘two years from the date hereof’-that is, from September 30, 1903-it should be incontestable except for nonpayment of premium. We do not see, therefore, why the date from which the two years should commence to run should not be held to be September 30, 1903. If, however, the two clauses found in the policy-that is, the clause which provided if the policy should remain in force ‘two years from the date hereof,’ and the clause which provided the policy should not become binding on the company until the first payment should have been made and the policy delivered-are in conflict with each other and render the time uncertain from which the two years in which the policy might be contested should commence to run, we think the first clause-that is, that the policy should be incontestable if it remained in continuous force after two years from the date thereof-should be held to control, as that construction would be favorable to the insured, as rule is that the language of an insurance policy, when uncertain or ambiguous, is always to be construed in favor of the insured and more strongly against the insurance company. Union Mutual Accident Ass'n v. Frohard, 134 Ill. 228, 25 N. E. 642,10 L. R. A. 383, 23 Am. St. Rep. 664;Terwilliger v. National Masonic Accident Ass'n, 197 Ill. 9, 63 N. E. 1034;Royal Circle v. Achterrath, 204 Ill. 549, 68 N. E. 492,63 L. R. A. 452, 98 Am. St. Rep. 224;Switchmen's Union of North America v. Colehouse, 227 Ill. 561, 81 N. E. 696. Our conclusion is that the policy became incontestable two years after September 30, 1903, if it continually remained in force from that date for two years.

It is further urged that the...