*1 pre- plaint, the determination lie testified jury grand his own to the sent matter prompted only by case as the facts of the decision, Levy were under Stern. Stern related jury they grand subpoena before the when testified against plaintiff. which returned indictments trial reached, of conclusion we have In view pertaining suggested by to the defendants errors pecuniary worth of of evidence of the admission testimony de- of the exclusion defendant, one (on malice) of to the fendant Stern plaintiff ill no will, that he bore the effect damages awarded, need issue excessiveness not be determined. the trial court is reversed Avith judgment in favor of here defendants.
judgment Reversed. MoCORMICK,JJ., concur.
DRUCKER Mooney, Walter Executor the Estate of Barnett Faroll, Deceased, Underwrit Plaintiff-Appellee, v. at Incorporated, ers not Defend Lloyd’s, London, ant-Appellant. 49,261.
Gen. No. Division. District, First First 7, 1964. December January Rehearing 25, 1965. denied *2 Chicago (N. Board- & S. Brook, Bissell Lord, counsel), Smyser, M. for F. L. Tozer and J. man, appellant. appellee. Dooley, Chicago, A.
James opinion MR. delivered JUSTICE KLUCZYNSKI of the court.
Plaintiff, Faroll, as executor of the estate Barnett judgment $50,- deceased, recovered a verdict and Lloyd’s against Lon- defendant, Underwriters at incorporated, insur- don, not on a of accident appeals. ance. Defendant August through agent,
On 21, defendant, its Company, Bowes & Inc.,* Faroll, decedent, issued of accident insurance which subse quently August By renewed on 1953. 23, its terms the *3 policy provided $50,000 for accidental death; for for permanent temporary total and for dismemberment or weekly payment up disablement with benefits of $250 by years if three caused accidental, violent, exter solely independently nal and visible means of all other causes.
On December 1, 1953,while the inwas effect, by Faroll crossing was struck an automobile while Chicago, LaSalle Street in a result as of which he sustained traumatic subdural or intercranial hem- orrhage, causing January death on 1954. 4, A policy. claim was made under the Defendant’s inves- tigation applica- at revealed that the time of Faroll’s allegedly suffering peptic tion he was from a dia- ulcer, September betes cataracts. 1954 * Although Company, Bowes & Ine., party was made defendant, at the plaintiff’s close all the evidence and with acquiescence Bowes & was dismissed out. enclosing liability plaintiff denying check wrote policy. paid premiums under Faroll had present action and the The check returned instituted. pol- upon which insurance, signed August
icy by 1952 was 20, dated issued, Supplee, an insurance Faroll and one Cochran follow- were included the In the broker. ing and answers: way your any impaired
8(a) sight have or Is any you affection of ever suffered n eyes ? (Answer) No. infirmity? you physical any defect or Have (Answer) No. you perfectly and in sound Are now well health?
(Answer) Yes. signature Immediately clause: Faroll’s was the above falsity any hereby agree answer “I that the do right recovery application . . . shall bar made intent to de- thereunder, if answer is such acceptance materially ceive affect either the or risk assumed the Underwriters.” or the hazard Additionally, conditions the fourth six any or concealment “fraud, misstatement, read that proposal made or on be- or either the statement effecting prior In- when of the Insured to or half *4 Insurance of no force . . . shall render this surance shall be forfeit- and all claim thereunder and effect ed.” theory insured the induced that
It is defendant’s through misrepresenta- issuance of the instant materially affected ei- which tions ther the the acceptance risk or the hazard assumed causing company, void thus the to be tbe respect, inception; in this evidence its and that the presented being no denied, neither nor contradicted jury. Defend- the fact submission to ant it was entitled to a directed further contends that material verdict because the affirmative defense of by any misrepresentation proved denied and not plaintiff’s evidence on behalf.
Plaintiff contends “within that context posed jury could find misrepresentations made,” material were no and misrepresenta- in the alternative, material by agents tions were made of the defendant and, estopped asserting therefore, defendant is them present as a to bar action. charges
Defendant insured’s health was a determining acceptability vital factor in of his application, by failing truthfully respond and that questions 8(a), application, 9, and 10 in the Pároli caused a risk defendant assume it would not have otherwise undertaken. sustain To affirmative de- its misrepresentation fense of material called ophthalmologist, Dr. Theodore Zeckman, an who tes- eye tified as to Faroll’s condition. Pároli worn glasses many years, May 1947 consulted glasses, Dr. Zeckman for a routine check of his paralysis (a to determine status Bell’s facial paralysis, very degree) mild in which he sustained prior. right six weeks It had affected the side of his face. At that time doctor found that due to the presence eyes, of cataracts in both Faroll’s vision in right eye (20/70), (20/200) 30% 10% eye; glasses, in his left and that with vision in his right eye could be corrected to 20/50. periodically then through
Pároli saw the doctor during gradual impairment which time reduction or place. eye in vision had taken that had 20/50 *5 eye glasses gradually and the vision with deteriorated began Dr. Zeck- even less. vision to have 10% eye operation man an the left recommended on performed which was on the removal of the cataract, improve- May 17,1952. The doctor there was testified year eye by August and that ment the left (the (Faroll had, time issued the instant was regained through special glasses, the use of cataract straight acuity eye, ahead, but visual 20/20 sight glasses normal that his left which allowed him blurring eye fogging out effect or had the right eye than it was less the vision in his so that special glasses in the 20/200; vision that without operated eye He consid- would be less than 20/200. eyes of the from the time ered the of Faroll’s condition 1954) (in operation to him the last time he saw until eyes. impairment be an of the personal Harry Jackson, called Dr. Defendant physician him who had known friend and of Faroll “very, very 1907. Faroll had a since testified that He controlled form” which at first mild of diabetes sugar by cutting carbo- on intake of down May hydrates. controls were initiated in These conjunction operation eye Dr. when with Faroll’s special put year after him on a About a Jackson diet. effected, diet were Faroll’s condition controls necessary point where it became worsened to the dosage give He Dr. him a of insulin. Jackson to small peptic Faroll had an old ulcer further testified that (an taking Sippy powder old treat- for which he Sippy) after a Dr. and named ment initiated the stomach. excess acid from While which removed necessary if it Faroll con- he not know did during powder taking the ten twelve tinue any prior years he did not death, Faroll’s find ac- tivity complained ulcer; that Faroll had not respect past any the ulcer for difficulties with hospi- years; at the that his tests taken stool *6 operation indicated no of tal at time the cataract symptoms. general, stated that ulcer In Dr. Jackson develop the kind it was for men to common over very was in case of found and that his Faroll, diabetes probably effect on his mild, and would have little general sugar. if he and health cut down on starches fairly good a He said man Faroll health for that inwas prior age his of his accident that caused to the death.
Dr. Gr. medical for Conti- Martin, Clement director Casualty Chicago by nental called expert as an witness. He re- outlined his sponsibilities background and in insurance and medi- qualify represent thinking him cine to experience to respect insurance field with to ac- ceptance response hypothetical of risks. to a question which evidence, assumed the facts in name- ly, aged the issuance of insurance a man accident to who, in an for such insurance stated he that had had mild diet; diabetes controlled he that history a stomach ulcers; that three months before the he a had cataract removed from eye; right eye; his he left that had a cataract on his glasses, eye that, corrected with the vision in his left right eye 20/20; vision that in his with the cata- when ract, tested alone, 20/70; cataract glasses prescribed permitted which vision in 20/20 eye right eye, left blurred out the vision his Dr. industry general Martin stated that the ject would re- applicant. such an He further stated that dia- importance betes, however mild, is of utmost accept determining reject whether to or since risk, profound poorer it has effect on slower and ability person injury, of a himself restore after an very one, even a minor even if such diabetes was point mild. He said that from a medical of view there are cases of from an mild, diabetes described but as underwriting point always bad. diabetes is view
Plaintiff called as witnesses several business acquaintances social of Faroll. These testified type of work member of the Faroll had done as a up which Board of Trade to the his death, time of required buy work him and sell commodities signals; use of hand were activities about they previous years; same as had been all the operated he his own ac- his own firm and traded anything they counts, and that had never noticed eyesight unusual about his or he ate. the food Plaintiff Mrs. Lundh under Section called Frances 60. She was an insurance underwriter Bowes Lloyd’s, authority to bind risks in behalf of certain *7 strictly were circum- but she testified such risks application on the and, scribed. She received Faroll’s basis determined therein, of the information contained poli- accept that she could so caused risk, and cy she found to issue. In her work as underwriter passing ages 60 to 65 and difficulties after humans had persons expect to “we would them 70, as to over age.” reasonably good man be in health for a significance pass- She said that would be ulcers ing application on an such as Faroll’s and that she response expect mentioned in to would diabetes to be expect 10. 9 and She would someone who provide 8(a). glasses an answer to wore application ulcers, an disclosed diabetes and "Where of course, as a matter be declined cataracts, would, it Lloyd’s authority to bind would have no since Bowes “(O)n application an an accident such a risk. finding policy of cataract or cata- . . . statement operations itself be reason for declina- would of ract impairment eyes, a serious it is tion, because binding authority.” specifically under our excluded 244 liability upon it order to defeat tbe upon prove was incumbent its af firmative defense tbat Pároli made false statements at tbe time of tbe execution of tbe tbat misrepresentations materially these ac affected tbe ceptance of tbe risk Insur or tbe hazard assumed. 359(a). (Ill ance Code Sections 1937, Rev 154, Stats 971(a).) Campbell §§ 1963, c 73, 766, v. Prudential Ins. of America, Co. 15 Ill2d 155 9 308, 313, NE2d (1958). misrepresenta
Whether a false statement or depends upon reasonably tion is material whether intelligent regarded careful and men would have tbe substantially increasing facts as stated chances tbe happening against of tbe cause a of events insured so as to
rejection imposition of tbe or tbe Metropolitan of different conditions. v. Weinstein (1945). Life Ins. Co., 389Ill 571, NE2d 207 testimony undisputed appli Tbe is tbat tbe cation failed to disclose Faroll’s true condition at tbe questions 8(a), time of its execution. If were and 10 properly they answered would disclose facts tbat could materially affect tbe risk and hazard of tbe coverage. Defendant entitled to this disclosure. Tbat tbe insured did not die tbe affliction respect to which information was withheld does not materiality misrepresentations. affect tbe of tbe Wein Metropolitan stein v. Life Ins. 389 Ill Co., 571, *8 Campbell NE2d 207; v. Prudential Ins. Co. of America, 9. Ill2d 308, 155NE2d Mrs. tbe Lundb, underwriter who made tbe decision policy application, issue tbe on tbe basis of tbe expect stated tbat she would tbe diabetes to men- be tioned in answers to 9 and 10. She further expect wearing glasses stated tbat she would someone question 8(a) in answer although to so disclose wearing glasses she an did not consider the of alone impairment eyes, glasses if the a would correct the history pathologi- aof diseased condition be a would request cal there a for a state- situation and would be ophthalmologist submitting from an ment before application case to the underwriters. an Where cataracts, such a ulcers, disclosed diabetes authority accept there was no it. anOn for a that covers accidental ac- benefit, death dismembership cidental week- benefit and accidental ly indemnity years, finding for three a of statement operation eyes cataract or cataract on the would of itself be reason is a seri- for declination “because it impairment eyes specifically ous under excluded binding authority.” our
Dr. medical Martin, the director of Continental Cas- ualty gave expert opinion that the insurance industry generally age reject for would accident cover- person age
a of Faroll’s from the who suffered application. Faroll conditions had at the time of his appear only He said of cataracts that certain kinds person having a and that diabetes has diabetes, profound poorer ability on effect the slower and person injury. to restore himself an after any presented
The decisive issue whether there is is evidence in the record when viewed in its as- which, the pect plaintiff, proof most favorable to constitutes misrepresentations were not material. that the There no denial that Faroll had cataracts which is seriously sight he vision, and that affected might history diabetes. be had a raised as to Some proof of ulcers but the two former risk suffice to affect the or hazard would conditions of the unequivocally policy. established that It Bowes could not bind defendant underwriter at Lloyd’s reflected the true if the status testimony Dr. Martin’s uncontradicted Faroll’s health. *9 reject industry would insurance indicated that the application. seriously eyes affects of one’s
The condition physical con- Diabetes affects risk an accident. person hazard so as to increase dition of policy risk of the also increases the an accident. It recovery frequently coverage affects it because injury, loss accompanied by causes when often, of limb recovery. not believe do and retards We materiality case instant information in the of the policy. The risk in a health from such issue differs in only limb, loss of not death but covers this temporary sight, permanent disablement total or in- the true entitled to fees. Defendant was doctors’ passed upon it at the time formation properly had the risk. It evaluate the order accept reject right the haz- risk refuse to propose restrictions conditions. other or ard or to record we hold that From the entire proved law. defense as a matter of its affirmative es- insists that defendant is
Plaintiff, however, misrepresentations topped asserting the because only agent. Supplee acting evidence as its dep- Supplee’s relating issue was contained to this he was a the trial. It disclosed that osition read into maintaining and New York, licensed Illinois broker city. Chicago He visited occa- an office in the latter sionally occupying He not hotel accommodations. Lloyd’s. employed Though having or Bowes dealings prior he was associated with a with them agent general Aetna Life Insurance of the Lloyd’s. right Bowes or He no to bind knew and had years, prior eighteen him and sold accident Faroll for company. another insurance with expiration Upon United States steps Guaranty Company, pro- Fidelity he “took & Mr. He found insurance for Faroll.” cure other *10 Lloyd’s seventy. writing men over He endeav- get to it for Faroll to take the ored Mm. He induced policy. many dealings Faroll and knew He had with personally. suggestion him There was that he ever no anything than a held himself to Faroll as other out. Supplee deposition, in “I went broker. testified his getting to Faroll with the idea of his authorization coverage, Lloyd’s coverage, to obtain in similar Lloyd’s quotation him.” He a from and af- received “I I Faroll, ter several conversations with believe finally signature in his office in the Rook- secured his ery Building. (Faroll) signed application . . . He the my Supplee at had filled at behest that office.” application the answers to on the on the personally the what he knew Faroll basis of about year. him several since he saw and observed times appli- He used information in the also as basis the prior policy. cation for the He admitted that he car- application ried him a blank and had filled in with knowledge the answers after best of Faroll signed had he could recall whether it, that not application had filled out while he was in been Faroll’s office.
Supplee specifically questioned as to the re- sponses application respect appearing with on the questions 8(a), 9 10. In each case he admitted supplying consulting Af- the answers without Faroll. he ter the was filled out took it to Bowes “They agents.” Chicago. are known as subsequently Far- issued. He delivered paid premium. oll him the The renewal he ef- who taking the renewal binder to Faroll fected collecting premium again from insured. Casualty v. Commercial Plaintiff cites Moone Ins. App (1953) 328, 350 Ill NE2d deter as Co., In the Moone minative of his contention. case the attorney, Chicago plaintiff, was referred an re- Bar Association to the Insurance Company’s gen- policy. phoned spect to the He agent Chicago told information and was eral Shortly one call thereafter someone would on him. Hughes saying he from the Com- on him, called Hughes. pany. previously known Plaintiff had not Hughes signed filled Plaintiff in blank. only plaintiff indicating sus- in pected answers previously been ulcer he had when, fact, hospitalized for stomach ulcers. Hughes agent holding Com- was the
pany estopped de- therefore, it was and, policy, feating plaintiff’s said claim on the the court agent *11 335): plain- (p Hughes was the “Whether charge so as one or the other with insurer, tiff or application, responsibility in de- for the answers the upon pends first him in could motion, who set who pay him his in- control who is to whose action, protect. Mechem, terest was he there to the Law of Outlines (3rd 1923).” Agency, § court ed, The only that reasonable inference from the tes- found the timony Hughes motion, that the in was set his actions as were for he and that broker controlled, place compelled plaintiff’s application with Company; received his commission from he the Com- protect pany, and in addition he was there to Company. He was there at the direction of the Com- filling pany as interest in out his succeed in mission. the Moone he did was to was further influenced the fact that case the court during “open period” an was made unacceptable, applicants, ac- otherwise were when 336): (p cepted. “In view The court said Hughes ‘open period’ did insurer, of the what importance acceptance as the in so far is diminished risk is concerned.” analogous The Moone case is neither to the closely point, plaintiff case at bar nor is it ar as gues. Supplee did Defendant not first set motion. He was a licensed broker insur who had sold Faroll types procured previous ance of all before and had Fidelity accident Guar United States anty Company. policy expired When that because of age, Supplee insured’s Mr. Faroll with the “went to getting coverage, idea of his authorization obtain Lloyd’s coverage, finally similar him. He au for get Lloyd’s.” thorized me to insurance in The Supplee socially record indicates knew Faroll eighteen years and him often. There is no evi visited dence that defendant controlled him or his actions. pay broker, It did is all. him a commission but that as testimony any inference, is devoid of let proof, Supplee protect alone there to defend Sup ant’s interest. Plaintiff has failed to show that Lloyd’s plee agent he or that was “held out” upon proving agency was as such. The burden of plaintiff. of law. There He failed to do so as a matter justify are instant case that would no facts jury. submitting this issue to opinion that defendant was en- are of the We its af- verdict for the reason that titled to directed misrepresentation was firmative defense of material by any proved evidence, and not denied and because *12 produce any plaintiff from evidence which failed to reasonably Supplee inferred that was de- it could be agent. fendant’s points of has raised other error as
Defendant opinion grounds reversal but in view of our here- passed up- expressed, contentions need not be those on. judgment and is reversed entered court
The trial defendant. here for the
250 judgment defendant. Reversed and P. MURPHY, J., concurs. dissenting:
BURMAN, J., opinion case record this rendered I am that on the judgment jury the verdict of the by correct the Circuit was on the verdict Court should be affirmed. who insured, Mr. Pároli,
It is uncontradicted that years age, by in- an accident was covered policy by uncon- It is surance issued the defendant. policy ef- in force and while the troverted that walking as a struck a car while fect, Pároli was shortly pedestrian was the thereafter. It and died undisputed testimony physician who of a coroner’s performed post cause of death mortem, that the sole hemorrhage. subdural intercranial was a traumatic or Supplee, Par- he and not broker, Also the stated that oil answered the and that he did so appears insured. his own observations of the the It only a few insurance com- one policy persons panies special risk to issue such a charged premiums greater over that it because 70 and greater is risk involved. It also uncontradicted agent, local that neither defendant nor its Bowes Company, personally examined the insured before is- elderly suing special man. risk to this such payment policy, to avoid on the defend- order prove the deceased insured made false ant must misrepresentations materially which af- statements or company. risk assumed Further- fected the provides, the Insurance section Code more, misrepresentation part, such or false war- that “no ranty unless or avoid the it shall shall defeat actual intent to deceive ma- been made with or have *13 acceptance terially or of the risk the affects either company.” (Ill by Rev Stats the assumed the hazard 766.) § 1953, c 73, opinion intentional the issues of am of the
I agency misrepresentation be decided as cannot is suf there case, law in this but that a matter of require that these in record to evidence ficient jury. is evidence to the Where issues be submitted conflicting in that different such character or of questions of fact therefrom, the can be drawn ferences jury. thereby Mar be submitted to should raised Metropolitan 405 90 NE Co., 90, Life Ins. Ill shall v. Metropolitan Ins. 389 Co., v. Life 194; 2d Ill Weinstein Horton, Firemen’s Ins. v. 207; NE2d Co. 571, 955. Ill 48 NE 258, agency pertaining is to the evidence Supplee, support the inference sufficient policy, acting was not as the who sold this broker filling agent insur- in insured’s appear obtaining policy. not It does ance or that Supplee obtaining about contacted insured indicates that it rather the record insurance, but new Supplee Supplee initiative. took the who was Company other than that with Bowes accounts Supplee appears had done and it insured many years. with Bowes business paid Supplee Bowes and Com- a commission Supplee pany insured and it to the for the sale policy. premium and delivered the collected the who Whether appli- Supplee, insurance who filled signed it in blank and who insured cation after subsequently policy, insured’s was the obtained be agent fact to determined a matter of circumstances jury and the all the evidence under the case. record from which evidence in the is
Likewise there reasonably might inference that, even draw one *14 agent Supplee acting the insured, if for the as not were answers to the on the materially af- made with actual intent to deceive or acceptance hazard risk or the fect either the of the company. Every who testi- assumed fied the witness agreed age 72 that at the insured’s advanced persons developed physical all have ailments. some Especially against considering that risk insured was not the of acci- health, insured’s but the chance injury, given dental here do not necessari- answers ly deception. No. Question indicate intentional 10 you perfectly general asked, in well terms, “Are now and in sound health?” The evidence reveals that the buy- operator insured was an of Trade, on the Board ing selling grain pits in the various that he daily day was active in this business to the accident. you any physical
Question No. 9 “Have de- asked, infirmity?” your fect or Question No. 8 asked: “Is sight any way impaired you suffered or have any eyes?” affection evidence most favor- plaintiff good able to the reveals that he was personal physical health for a man 72. A examina- company tion all likeli- would in Harry him. hood have been favorable to Dr. Jack- personal years, physician son, the insured’s for over longstanding testified that ulcer, insured had a during years hut that the ten or twelve before the activity any death, insured’s the doctor did not find of that ulcer. He also testified that the insured “had very a mild form of diabetes.” As Dr. Jackson tes- fairly person “it is tified common for a above 70 to develop I kind of diabetes found in this man.” probably
The same is true about the con- cerning impairment sight eyes. and affection of the physician surgeon spe- Dr. Theodore Zeckman, cializing ophthalmology, testified that he had re- eye
moved a cataract from insured’s left in 1952. following operation He testified there gradual improvement in his vision until he eye normal, achieved over vision 20, special some restriction of lateral vision. Because of a right eye, eye lens the vision in that a blurred. addition doctor testified cata- person ract is not an unusual condition when a the reaches age he of the insured at the time took out the policy. repre- any insured did make material
Whether the *15 my opin- is, sentations which would void jury of fact to be determined ion, from the evidence. Illinois, Defendant in Error- the State
People Tomaszek, Plaintiff George v. Gerald Appellee, Error-Appellant. 49,449.
Gen. No. Division. First District, First 7, 1964. December Rehearing denied December 30, 1964.