Appeal from the Circuit Court of Champaign county; the Hon.
CHARLES E. KELLER, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.
Plaintiff brought this action as beneficiary under an insurance policy issued by defendant upon the life of Juanita Reed, deceased. A jury trial resulted in a verdict for plaintiff in the amount of $1,058.33. Defendant's motion for a new trial or, in the alternative, for judgment notwithstanding the verdict was overruled. From a judgment on the verdict defendant brings this appeal.
Facts not in dispute disclosed by the record are that defendant issued the policy on May 5, 1952; that the same was permitted to lapse for nonpayment of premiums on August 30, 1952; and that the insured applied for reinstatement thereof on September 10, 1952. The application for such reinstatement was upon defendant's printed form which contained the following:
"Should this policy become void in consequence of nonpayment of premium, it may be revived if not more than the premiums for three years are due upon payment of all premiums in arrears and the presentation of evidence satisfactory to the company of the sound health of the insured, provided the cash value hereunder has not been paid."
The policy contained the following provision with reference to reinstatement:
"I represent to the best of my knowledge and belief that all of the persons to be insured under the above policies are now alive and in sound health and understand that the insurance shall not become effective unless application is approved by the Company at its Executive Offices in Evanston, Illinois."
The policy was reinstated on September 22, 1952. At 8:00 o'clock on the morning of that date the insured was operated upon for removal of a tumor of her right lung, and died about 12:30 o'clock on the same day. Plaintiff executed proof of death of the insured on October 3, 1952. The defendant refused payment under the policy and tendered return of the premiums paid by insured upon reinstatement.
It is the defendant's theory that the issue in this case is whether the insured furnished honest evidence that she was in sound health at the time she applied for reinstatement of the policy. The defendant contends that upon this issue the plaintiff failed to make proof and therefore it's motion for judgment notwithstanding the verdict should have been sustained.
The plaintiff's theory is the jury properly found that the insured honestly represented she was in good health at the time she applied for reinstatement of the policy and that the verdict is sustained by the evidence.
From their briefs and arguments the parties appear to be in agreement on the proposition that the basic question presented for decision on this appeal must be resolved from a consideration of the evidence.
The right of the plaintiff to recover depends upon determination of the issue as to whether the decedent acted honestly and in good faith when she stated in her application for reinstatement on September 10, 1952, that she was in sound health. This was an issue of fact to be decided by the jury.
Since the only seriously disputed fact question is whether the decedent knew, when she signed the reinstatement application, she was not in sound health, our review of the evidence will be limited to that bearing upon such question.
Plaintiff testified he knew nothing concerning the presence of a tumor when the application was signed by decedent; that he knew she went over to see Dr. Stilwell about some cold business; that she had a very bad cold; that her death was very much unexpected; and that she had been in perfect health.
Dr. Stilwell, witness for plaintiff, testified he talked with decedent during the first part of August 1952, following receipt of an X-ray taken on August 4, 1952; that he received a report in August 1952, from Dr. Cole of the Champaign T.B. Hospital of a chest X-ray of decedent; that such report found some density in the right apex; that a copy of the report goes to the patient; that he interviewed Mrs. Reed a couple of times during the month of August and recommended another chest X-ray be taken; that an X-ray was taken on September 5, 1952; that he didn't recall informing her that she had a tumor; that he might have mentioned the fact to her; that she was complaining of some abdominal pain which brought her to his office on that particular day September 5, 1952; that he asked her to have an X-ray taken of her chest; that he advised her sometime between September 5 and September 17 that she had a definite mass in her right chest for which surgery was recommended or advised; and that surgery was based on the report on the X-ray taken September 5. On cross-examination this witness testified that he had no written report of telling decedent she had a tumor in her right chest prior to September 5; that in his discovery ...