Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and JUERGENS, District Judge.
The United States District Court for the Northern District of Illinois, Eastern Division, granted defendant's motion for summary judgment and denied plaintiff's motion for summary judgment. This appeal followed.
Plaintiff, the beneficiary under a life insurance contract made between plaintiff's husband and Equitable Life Assurance Society of the United States, seeks a judgment in the amount of $12,000 plus interest. The defendant filed an answer partially admitting and partially denying the allegations of the complaint.
The facts, generally stated, are as follows:
Comanche Earl Johnson, hereinafter called the Insured, made application to the Residential Mortgage Department of the Equitable Life Assurance Society of the United States, hereinafter referred to as Equitable, for a $12,000 loan to be secured by a first mortgage on his home.
It is assumed that Equitable required additional security for the loan through insurance.*fn1 On March 27, 1958, the insured executed application for insurance, Part I, to Equitable by which he applied for $12,000 life insurance. This application contained the following paragraph:
"There has been paid to Greig Griffin $20.16 for Preliminary Term Insurance to April 30, Plus $38.28, the first monthly premium on the policy herein applied for, in accordance with the provisions of the receipt bearing the same date and number as this application."
The receipt given to the insured reads as follows:
"RECEIVED of Comanche Earl Johnson No. A502246 $20.16 Dollars for Preliminary Term Insurance to April 30 plus $38.28 Dollars, the first monthly premium on proposed insurance for $12,000 on the life of Comanche E. Johnson for which Part I of an application bearing the same number as above is this day made to The Equitable Life Assurance Society of The United States. If a satisfactory Part II of the application is furnished to the Society and if the Society shall be satisfied after such investigation and such medical examinations as it may require that the Proposed Insured is on this date insurable and qualified under the Society's rules and standards for insurance in the amount and on the plan applied for and at the premium specified herein, the insurance applied for shall take effect and be in force subject to the provisions of the policy applied for from the date of this receipt; if not so insurable and qualified, no insurance shall take effect hereunder, and the payment evidenced by this receipt shall be returned.
"Dated at Northbrook West Illinois 3/27/58 Greig Griffin Agent."
The insured did pay to Equitable and Equitable did give insured its receipt for $20.16 for preliminary term insurance to April 30 plus $38.28, the first monthly premium on the policy applied for at the time Part I of the application for insurance was executed and delivered to Equitable.
Comanche E. Johnson died on March 29, 1958, of natural causes, and Part II of the insurance application was never completed.
Equitable's contention that the satisfactory completion of Part II of the application and acceptance by Equitable (after investigation and medical examination showing that the proposed insured was on that date insurable and qualified for insurance on the plan for which application was made) were prerequisites to ...