Summary
In James v. National Life Accident Ins. Co., 265 Ill. App. 436, the policy contained a provision to the effect that no obligation was assumed by the company prior to the date of the policy, nor unless on said date the insured was alive and in sound health and it was insisted that this was a condition precedent and inasmuch as the beneficiary failed to prove that the insured was in sound health when the policy was delivered, the judgment obtained by the beneficiary could not be sustained.
Summary of this case from Crawford v. Lincoln Life Ins. Co.Opinion
Opinion filed February 1, 1932. Rehearing denied March 7, 1932.
1. INSURANCE — when furnishing of proofs of death is reasonable inference from evidence. Where before the trial plaintiff gave defendant written notice to produce on the trial the proofs of death which she had submitted, and plaintiff testified that she had made application for payment of the insurance on the proper forms but that no payment was made, and defendant offered no evidence tending to show that the proofs were not furnished, that they were defective or that objection was made to them, it was a reasonable inference from the evidence that proofs were made.
2. INSURANCE — when proofs of death waived. In a suit on a life insurance policy, where there had been a judgment by default against defendant and in the affidavit of one of defendant's attorneys in support of the motion to set it aside, the defense to the suit was stated to be that the insured was not in sound health at the time the policy was issued, proofs of death were thereby waived.
3. INSURANCE — when policy conditioned upon sound health of insured effective upon delivery. Where a life insurance policy providing that no obligation is assumed by the insurer unless the insured on the date of issuance of the policy is in sound health, is issued after the insured has upon making application been found a good risk by the insurer's medical examiner, if any length of time has elapsed between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and if it fails to do so the delivery is conclusive against the insurer as to the completion of the contract.
4. INSURANCE — meaning of provision conditioning insurer's obligation on sound health. A provision in a life insurance policy that "no obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is . . . in sound health," merely means that the applicant must not have contracted a disease between the date of the application and the issuance of the policy, and the provision does not apply to a condition that existed prior to and at the time of the making of the application.
5. INSURANCE — when admission of application for life policy not erroneous. In an action on a life insurance policy there was no error in admitting the application of the insured in evidence although the policy did not make the application a part of the contract, plaintiff being entitled to prove the fact that there was a written application and the date thereof, and the application itself being the best evidence of such fact.
Appeal by defendant from the City Court of East St. Louis; the Hon. WILLIAM F. BORDERS, Judge, presiding. Heard in this court at the October term, 1931. Affirmed. Opinion filed February 1, 1932. Rehearing denied March 7, 1932.
JAMES K. MORAN and B. E. HAMILTON, for appellant; KARCH, HENDRICKS MORAN, of counsel.
FRANK M. SUMMERS, for appellee.
Appellee sued on a life insurance policy and recovered a verdict and judgment. Appellant insists that the judgment must be reversed, not because proofs of death were not furnished, but for the reason that appellee failed to show that they were. Before the trial appellee gave appellant written notice to produce on the trial the proofs which she had submitted. The filing of the suit was also notice to produce the proofs. Appellee testified that she made application for payment of the insurance on the proper forms but no payment was made. Appellant offered no evidence tending to show that proofs were not furnished, that they were defective or that objection was made to them. It is a reasonable inference from the evidence that proofs were made. Continental Life Ins. Co. v. Rogers, 119 Ill. 47.
Appellant waived proofs of death. There was a judgment by default against appellant and a motion to set it aside. The motion was supported by the affidavit of one of appellant's attorneys in which the defense to the suit was stated to be that the insurance policy contained a provision, in substance, that it was issued upon the assumption that at the time of its delivery The insurer was in sound health; that she was not then in sound health, but was suffering from pulmonary tuberculosis; that the policy was issued on October 5, 1927, and the insured died from that ailment on June 14, 1928, and by reason thereof the policy was never in force. By placing its defense upon that ground appellant waived all other defenses, and it would have been useless, under the circumstances, to furnish proofs.
The policy provides that "no obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is alive and in sound health." Appellant insists that this is a condition precedent and as appellee failed to prove that the insured was in sound health when the policy was delivered the judgment must be reversed under Weber v. Prudential Ins. Co., 284 Ill. 326; Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226; Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433, and other Appellate Court cases. In all of the cases just cited the applicants died before the policies were actually delivered. The cases were correctly decided but are not applicable to the situation here presented as the policy was delivered more than eight months before the death of the insured. In the other Appellate Court cases relied on by appellant, the policies were delivered but the courts improperly followed the rule of law laid down in the cases above cited. The distinction between cases where the policies were delivered and those where they were not was overlooked.
In the case at bar the application for insurance was signed on September 12, 1927, and appellant's medical examiner found and reported that the applicant was a first class risk. The policy was issued October 3, 1927, and delivered at a later date without making inquiry as to the condition of the health of the insured. We think that in such cases the correct rule of law is that if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and if it fails to do so the delivery is conclusive against the insurer as to the completion of the contract. American Trust Co. v. Life Ins. Co. of Virginia, 173 N.C. 558, 92 S.E. 706; Grier v. Mutual Life Ins. Co., 132 N.C. 542, 44 S.E. 28; National Life Ins. Co. v. Grady, 185 N.C. 348, 117 S.E. 289. We followed those cases in Hungate v. New York Life Ins. Co., in an opinion filed at the present term of this court.
It has been held that such a provision as the one in question merely means that the applicant has not contracted a disease between the date of the application and the issuance of the policy. Johnson v. Royal Neighbors of America, 253 Ill. 570; Western Southern Life Ins. Co. v. Davis, 141 Ky. 358, 132 S.W. 410; Modern Woodmen of America v. Atkinson, 153 Ky. 527, 155 S.W. 1135; Chinery v. Metropolitan Life Ins. Co., 182 N YS. 555. The provision does not apply to the condition that existed prior to and at the time of the making of the application. If a condition so existing is relied upon as a defense it must be based upon some other provision of the insurance contract. In the case at bar there is no other provision. Appellant offered no evidence tending to prove that the insured contracted the disease which caused her death since the making of the application and before the issuance of the policy. On the contrary, it relies upon a statement in the death certificate that the insured had the disease for two years prior to her death.
It is argued that the policy does not make the application a part of the contract and for that reason the court erred in admitting the application in evidence. We are of the opinion that appellee was entitled to prove the fact that there was a written application and the date thereof. The application itself was the best evidence of its having been made and of its date. From what we have said it follows, necessarily, that the court did not err in its rulings on instructions or in the admission or exclusion of evidence. The judgment is affirmed.
Affirmed.