O'Rourke v. Prudential Ins. Co. of America

• Decision Date: 14 March 1938
• Docket Number: Gen. No. 39733.
• Citation: 294 Ill.App. 30,13 N.E.2d 287
• Parties: O'ROURKE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: United States Appellate Court of Illinois

294 Ill.App. 30

13 N.E.2d 287

O'ROURKE

v.PRUDENTIAL INS. CO. OF AMERICA.

Gen. No. 39733.

Appellate Court of Illinois, First District, First Division.

Feb. 28, 1938.

Rehearing Denied March 14, 1938.

Appeal from Municipal Court of Chicago; Cecil Corbett Smith, Judge.

Action on an insurance policy by Agnes B. O'Rourke against the Prudential Insurance Company of America. From a judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions. Follansbee, Shorey & Schupp, of Chicago (John E. Gavin and Louis W. Becker, Jr., both of Chicago, of counsel), for appellant.

Hoyne, O'Connor & Rubinkam, of Chicago (N. Rubinkam and W. Allen, both of Chicago, of counsel), for appellee.

O'CONNOR, Presiding Justice.

Plaintiff, the beneficiary named in a life insurance policy issued by defendant on the life of her husband, brought suit to recover $650 which she claimed under the terms of the policy for installments due up to the time of the beginning of the suit. The case was tried before the court without a jury, there was a finding and judgment in defendant's favor, and plaintiff appeals.

The policy is dated March 29, 1924. William J. O'Rourke, plaintiff's husband, was the insured. It provided that “upon receipt of due proof of the death of the Insured within ten years from the date of this Policy, while it is in force,” $5,000 would be paid to the beneficiary, Mrs. O'Rourke, the plaintiff. There was a further provision that, in case the insured was totally and permanently disabled while the policy was in effect, the defendant would pay to him certain benefits in installments, and that, if any of such installments remained unpaid at the death of the insured, they would be paid to the beneficiary.

March 29, 1934, while the insured was temporarily insane, he slashed his wrists and throat with a razor, as a result of which he died two days later. Counsel for both sides agree in this court that the question of liability depends upon whether the policy was in force on March 29, 1934, when the insured was totally and permanentlydisabled. Plaintiff's position as stated by her counsel is: “We take the position that the policy properly construed was not in effect on March 29, 1924, and that construed in terms most favorable to the company its term commenced on March 30, 1924, and that March 29, 1934, was within” the ten-year period covered by the policy; while on the other side the position of counsel for defendant is that, “The date of the policy, March 29, 1924, is the date of the beginning of the term,” and therefore the ten-year period expired on March 28, 1934, and was not in effect when the insured became permanently disabled on March 29th. Defendant's counsel further say: “If death occurs on the date of the policy, the company is liable and it follows under counsel's contention that in order to hold the company liable in this case, the term would have to be ten years and one day.” We are unable to agree with the contention of plaintiff's counsel, and are of opinion that the policy was in force and effect on March 29, 1924, the date it bears. We think it clear that, if the insured had died or was disabled on March 29, 1924, the company would be liable.

We are also of opinion that the questions whether the term would be ten years and one day, under the hypothesis of defendant's counsl, or whether the term would be less than ten years under one of the contentions advanced by counsel for plaintiff, are beside the point and wholly immaterial.

In N. Y. Life Ins. Co. v. Bullock, 5 Cir., 26 F.2d 666, 667, the Circuit Court of Appeals had before it the question of the meaning of the clause, “This policy shall be incontestable after two years from its date of issue,” etc., and said, “It would be useless to try to reconcile or to distinguish the many conflicting cases” on that question. We agree with that statement, and therefore shall not attempt to analyze or discuss the many cases cited by counsel.

The question for decision is the meaning of the policy. The date of the policy is March 29, 1924. It provides that, if the insured, William J. O'Rourke, became totally and permanently disabled while the policy was in effect “within ten years from the date of this Policy,” defendant would pay certain benefits. So that the question for decision turns upon the meaning of the words “within ten years from the date of this Policy.” The rules governing the construction of insurance policies are the same as those applicable to other contracts. Contracts of insurance, like other contracts, must be construed according to the terms the parties have used. It is only when there is ambiguity in a policy that the law invokes the rule that it should be construed most favorable to the insured and against the insurance company. Jabara v. Equitable Life Assur. Soc., 280 Ill.App. 147.

We think it clear that the language in the policy in the instant case is ambiguous, as demonstrated by the contrariety of the opinions of the courts where language in the policies involved is almost identical with the language in the policy before us. And under the rule of law we must construe the policy in terms most favorable to the insured and against the company.

It has often been held that the proper method of computing time where an act is to be performed within a particular period from a specified day is to exclude the day named and to include the day on which the act is to be done. Dierssen v. Williamsburg C. Fire Ins. Co., 204 Ill.App. 240;Caraher v. First Guardian Co., 268 Ill.App. 389;Price v. Ill. Bell Tel. Co., 269 Ill.App. 581;N. Y. Life Ins. Co. v. Bullock, 5 Cir., 26 F.2d 666;Metropolitan Life Ins. Co. v. Lodzinski, 122 N.J.Eq. 404, 194 A. 79.

In the Dierssen Case the fire insurance policy provided that in case of fire proof of loss should be filed “within sixty days from the time of the fire.” In construing that language we said (at pages 242, 243 of 204 Ill.App.): “It has long been firmly established in this State that the proper mode of computing time when an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done. Ewing v. Bailey, 5 Ill. 420, 4 Scam. 420;Protection Life Ins. Co. v. Palmer, 81 Ill. 88;Pugh v. Reat, 107 Ill. 440; United States Mut. Acc. Assoc. v. Mueller, 151 Ill. 254 ;Colonial Mut. Fire Ins. Co. of Philadelphia v. Ellinger, 112 Ill.App. 302;Cummins v. Holmes, 11 Ill.App. 158.”

In the Caraher Case, 268 Ill.App. 389, the court had occasion to construe certain sections of the Negotiable Instruments Act where it is said (at page 394 of 268 Ill.App.): “ ‘In computing time “from” a day, the rule is to exclude that day.’ (Anderson's Dictionary of Law, p. 481.) ‘From’ is a term of exclusion unless by necessary implication it is manifestly used in a different sense. (Bradley v. Rice, 13 Me. 198, 201 .) An officer commissioned to hold office during the term of four years from the 2d day of March, 1845, is in office on the 2d day of March, 1849. The word ‘from’ excludes the day of...