Lewandowski v. Western & Southern Life Insurance

Mr. Justice Fitch delivered the opinion of the court. This is an appeal from a judgment in plaintiff’s favor for $236 rendered upon the verdict of a jury in an action on a policy insuring the life of plaintiff’s son Edward. The policy was issued on plaintiff’s application, is dated June 26, 1922, and in consideration of weekly payments of twenty cents each, provides for the payment of $472 payable to plaintiff on the death of her son. No medical examination of the insured was made by defendant and the policy does not in terms make plaintiff’s application a part of the policy or refer to it in any way. On the contrary, the policy provides that “all the conditions and agreements contained on this, the preceding and succeeding pages hereof, constitute the entire contract between the company and the insured, and the holder or claimant thereof.” It also provides: “No obligation is assumed by the company unless on the date and delivery thereof the insured is alive and in sound health. ’ ’ The evidence shows, without dispute, that before and at the time this policy was issued, insured was not in sound health, but was suffering from pulmonary tuberculosis. Two months before the policy was issued, on the recommendation of a physician who testified that his disease was then “far advanced,” he was admitted to the Cook County Tuberculosis Hospital at Oak Forest, where he remained until about August 19, 1922. It was while he was in that institution that the insurance policy was issued to the plaintiff on her application. She testified that she knew he was sick and was in Oak Forest at that time and had been sent there by a doctor who was consulted in April, 1922, but she also testified that the doctor told her that her son “just needed rest and fresh air.” From Oak Forest he went to the Municipal Tuberculosis Sanitarium, where he died October 27, 1922. Upon the trial, the plaintiff introduced the policy of insurance and rested. Thereupon defendant moved for -an instructed verdict in its favor, but the motion was denied. This ruling was error. The stipulation in the policy to the effect that the insurance company assumed no obligation unless the insured was in sound health at the time of the delivery of the policy was a condition precedent, which it was incumbent upon the plaintiff to affirmatively prove in order to recover on the policy, and on the failure of plaintiff to prove that her son was in sound health when the policy was delivered, defendant was entitled to an instruction to find for the defendant. Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83; Continental Life Ins. Co. v. Rogers, 119 Ill. 474. It is also contended that plaintiff was guilty of fraud in procuring the policy under such circumstances, but, as what we have said requires a new trial in any event, it will be unnecessary to consider this contention. The judgment is reversed and the cause remanded. Reversed and remanded. Barnes, P. J., and Gbidley, J., concur.