Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Reversed and judgment for
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 25, 1965.
Plaintiff, as executor of the estate of Barnett Faroll, deceased, recovered a verdict and judgment for $50,000 against defendant, Underwriters at Lloyd's London, not incorporated, on a policy of accident insurance. Defendant appeals.
On August 21, 1952 defendant, through its agent, Bowes & Company, Inc., *fn1 issued Faroll, the decedent, the policy of accident insurance which was subsequently renewed on August 23, 1953. By its terms the policy provided for $50,000 for accidental death; for total dismemberment and for permanent or temporary disablement with weekly payment benefits of $250 up to three years if caused by accidental, violent, external and visible means solely and independently of all other causes.
On December 1, 1953, while the policy was in effect, Faroll was struck by an automobile while crossing LaSalle Street in Chicago, as a result of which he sustained a traumatic subdural or intercranial hemorrhage, causing his death on January 4, 1954. A claim was made under the policy. Defendant's investigation revealed that at the time of Faroll's application he was allegedly suffering from a peptic ulcer, diabetes and cataracts. In September 1954 defendant wrote plaintiff denying liability and enclosing a check for the premiums Faroll had paid under the policy. The check was returned and the present action was instituted.
The application for insurance, upon which the policy was issued, dated August 20, 1952 was signed by Faroll and one Cochran Supplee, an insurance broker. In the application were included the following questions and answers:
8(a) Is your sight in any way impaired or have you ever suffered from any affection of the eyes?
9 Have you any physical defect or infirmity?
10 Are you now perfectly well and in sound health?
Immediately above Faroll's signature was the clause: "I do hereby agree that the falsity of any answer in the application . . . shall bar the right to recovery thereunder, if such answer is made with intent to deceive or materially affect either the acceptance of the risk or the hazard assumed by the Underwriters." Additionally, the fourth of six conditions in the policy read that any "fraud, misstatement, or concealment either in the statement or proposal made by or on behalf of the Insured prior to or when effecting the Insurance . . . shall render this Insurance of no force and effect and all claim thereunder shall be forfeited."
It is defendant's theory that the insured induced issuance of the instant policy through misrepresentations in the application which materially affected either the acceptance of the risk or the hazard assumed by the company, thus causing the policy to be void in its inception; and that the evidence in this respect, being neither contradicted nor denied, presented no question of fact for submission to the jury. Defendant further contends that it was entitled to a directed verdict because the affirmative defense of material misrepresentation was proved and not denied by any evidence on plaintiff's behalf.
Plaintiff contends that "within the context of the questions posed by the application the jury could find that no material misrepresentations were made," and in the alternative, that the material misrepresentations were made by agents of the defendant and, therefore, defendant is estopped from asserting them as a bar to the present action.
Defendant charges that the insured's health was a vital factor in determining the acceptability of his application, and that by failing to truthfully respond to questions 8(a), 9, and 10 in the application, Faroll caused defendant to assume a risk it would not have otherwise undertaken. To sustain its affirmative defense of material misrepresentation defendant called Dr. Theodore Zeckman, an ophthalmologist, who testified as to Faroll's eye condition. Faroll had worn glasses for many years, and in May 1947 consulted Dr. Zeckman for a routine check of his glasses, and to determine the status of Bell's paralysis (a facial paralysis, very mild in degree) which he sustained six weeks prior. It had affected the right side of his face. At that time the doctor found that due to ...