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La Penta v. Mutual Trust Life Ins. Co.

DECEMBER 14, 1954.

JANE LA PENTA, APPELLEE,

v.

MUTUAL TRUST LIFE INSURANCE COMPANY, APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. THADDEUS V. ADESKO, Judge, presiding. Judgment affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This is a suit brought by Jane La Penta, the beneficiary of a life insurance policy issued by the defendant on the life of Andrew J. La Penta, her deceased husband, in the amount of $3,000. The trial court, hearing the case without a jury, found in favor of the plaintiff in the amount of $3,000 and entered judgment, from which said judgment this appeal is brought on the ground that the finding was against the manifest weight of the evidence.

The policy was issued January 22, 1951, without previous medical examination. The insured died on October 12, 1951 of a coronary occlusion. The defendant's contention is that the insured, in making the application for the insurance, made certain misrepresentations of fact with the intent to deceive, and which misrepresentations in all events materially affected the acceptance of the risk or the hazard assumed by the company. The questions and answers upon which the defendant relies are:

"No. 6 Q. Are you now under treatment or on a restricted diet for any cause? A. No.

"No. 7 Q. Have you consulted a physician in the last ten years? If so, give the full history below.

"A. Yes. Induction and Discharge examination by Army physicians. Remaining effects — none.

"No. 8 Q. Are you now in good health? A. Yes.

"No. 9 Q. Has any medical examiner or physician expressed an unfavorable opinion as to your insurability or health? A. No.

"No. 10 Q. Have you ever been operated on? Or been advised to have any surgical operation? A. No.

"No. 11 Q. Have you ever been under observation, care, or treatment in any hospital, sanitarium, asylum, or similar institution? A. No.

"No. 13 Q. Have you now, or have you ever had any illness, disease or injury not mentioned in answer to Question 7? A. No."

At the trial, in order to sustain its defense, the defendant introduced eleven exhibits, ten of which are photostatic copies of a portion of the Veterans Administration files. These exhibits, insofar as they are material to the issues involved, contain the following facts: The insured was examined in 1944 and 1945 at an army hospital where a diagnosis of chronic cholecystitis was made, and on January 18, 1945 a certificate of disability for discharge was issued on the ground of chronic cholecystitis. The insured was discharged from the United States Army on January 17, 1945 and awarded a ten per cent disability compensation from the Veterans Administration as of January 18, 1945. On October 1, 1945 the insured requested an increase in his award. There was in the Veterans Administration files from Dr. Ferdinand B. Monet, the insured's family physician, a letter dated January 17, 1946 stating that he had treated the insured for nonspecific diarrhea and cholecystitis. On January 23, 1948 the insured was examined by the Veterans Administration's physicians, giving a history of pain recurring with a frequency of six weeks to three months, and the report states that he had lost one week's time per year from work since 1945 because of these attacks, and he had been placed on a diet. At that time a working diagnosis of "cholecystitis, chronic, with cholelithiasis" was made, and X-rays were ordered. The second X-ray report was that X-rays of the gall bladder revealed "a bean shaped calcific opacity" in the gall bladder region, "probably a calcified stone within the gall bladder," and that the gall bladder did not visualize. On this report it is stated: "Impression was cholelithiasis and cholecystitis." On July 7, 1948 the disability award of the insured was discontinued due to improvement in his gall bladder condition. These reports were released to Dr. Ferdinand B. Monet, the insured's family physician, March 3, 1948. On July 26, 1948 the insured wrote the Veterans Administration objecting to the discontinuance of his disability award, complaining he still had to remain on the diet and be under doctor's care.

Dr. Monet testified as a witness for the defendant that he had attended the insured from August, 1945, to October, 1951; that he had treated him for his gall bladder condition; that in 1945 he might have been consulted by the insured as many as fifteen times, and in 1946 and 1947 two or three times; that he had certain X-rays taken, which did not visualize the gall bladder; that in 1950 the insured came to his office very often with his wife, but the doctor did not know whether the insured consulted him, and if so, it was very infrequently. When called as a witness for the plaintiff, Dr. Monet stated that in 1951 he believed he checked the insured twice and that the insured did not complain of anything unusual, and that it was his opinion that Mr. La Penta's state of health was good.

The beneficiary testified that during 1949, 1950 and 1951 the insured worked regularly; that he had not complained in 1950 or 1951 about pain in the gall bladder region; that during that period he worked ...


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