The opinion of the court was delivered by: Robert D. Morgan, District Judge.
This cause comes before the court on plaintiff's motion for
summary judgment rescinding a life insurance policy issued to
Mrs. Mary W. Roberson, defendant's decedent, on the grounds that
the insured made material misrepresentations but for which the
plaintiff would not have issued said policy. Jurisdiction is
based on diversity of citizenship.
The basic facts out of which the suit arises are not disputed.
In April, 1965, the decedent applied for a $15,000 life insurance
policy from the plaintiff. A photocopy of the application is
attached to the complaint. It is apparent from handwriting on the
face of the document that the deceased did not actually fill the
blanks on the application, but defendant agrees that she did sign
it, acknowledging "having read the above" and verifying that "the
information therein is complete and correct." The court does not
believe that the fact that Mrs. Roberson did not herself fill in
the blanks is material to the disposition of this case.
Question 11 of the "Medical History" in the policy application
asked whether applicant presently had or had ever had "Tumors,
cancer or syphilis." The answer was "No." Question 13 asked if
the applicant presently had or had ever had "X-rays or
electrocardiograms, operations or hospitalization." The "Yes"
answer was checked and the required explanation stated: "Routine
check-up. Lab-x-ray — EKG — Dr. W.V. Roberson, Woodriver,
Illinois, a few yrs. ago — Findings normal. New York Life
accepted 2 yrs. ago — since lapsed." Question 15 asked for "Other
illnesses, injury or symptoms; examinations or treatment by any
physician, practitioner, hospital, clinic or institution within
the past 5 years." Again, Mrs. Roberson responded
affirmatively; but under "Pertinent History (severity,
dates, duration, outcome); Names, addresses of physicians,
hospitals or clinics" she added only "occasional acute colds &
minor ills — Dr. D.J. Wisamber, Alton, Illinois 601 E. 3rd
In fact, as shown beyond dispute by deposition of Dr. W.E.
Powers, who supervised the administration of the radiation
therapy to her, Mrs. Roberson was treated for a "reticulum cell
sarcoma at the base of the tongue" at the Mallinckrodt Institute
of Radiology, St. Louis, Missouri, on twenty-two occasions
between July 22 and August 21, 1964; and she returned to that
Institute at least three different times between August 21, 1964,
and July 15, 1965, for periodic check-ups. The plaintiff contends
that Mrs. Roberson's failure to admit "tumors" or to mention her
treatment at the Mallinckrodt Institute constituted material
misrepresentations justifying rescission of the policy.
Ch. 73, § 766 Ill.Rev.Stat. provides in relevant part:
"* * * No such misrepresentation or false warranty
shall defeat or avoid the policy unless it shall have
been made with actual intent to deceive or materially
affects either the acceptance of the risk or the
hazard assumed by the company. * * *"
Counsel for the defendant administrator pointed out that it does
not appear certain and cannot be assumed, that Mrs. Roberson knew
that she had a tumor, that she regarded the radiation treatments
as anything other than x-rays, or that she knew Dr. Powers was a
physician rather than simply a staff member of the Mallinckrodt
Institute. Defense counsel concludes that whether Mrs. Roberson
actually knew her condition and intended to deceive the insurer
are material questions of fact for a jury to decide; and that
plaintiff's motion for summary judgment must therefore be denied.
While the court agrees that whether Mrs. Roberson actually knew
her condition and intended to deceive the insurer by her answers
to questions 11, 13, and 15, are questions of fact not now
determined or determinable, the court does believe that her
failure to mention the multiple attendance and the treatment at
the Mallinckrodt Institute in answer to question 15 constitutes
a material misrepresentation. The Illinois Supreme Court has made
clear that any single material misrepresentation is grounds for
canceling an insurance policy, within the contestable period,
even though the insured may not have intended to deceive the
insurer. Campbell v. Prudential Life Insurance Co., 15 Ill.2d 308,
155 N.E.2d 9 (1958). Thus, the possibility that Mrs.
Roberson may have thought that she was simply being x-rayed in
connection with the treatment of an acute cold, rather than being
treated for a malignant tumor, does not excuse her ignoring, even
unintentionally, this extended course of treatments if this
misrepresentation by omission was in fact material to the risk
she was asking the plaintiff to undertake.
The materiality of the misrepresentation would ordinarily, of
course, be a question of fact for the jury to decide unless the
court finds, as it does here, that "all persons would agree that
[it is] material." La Penta v. Mutual Trust Life Insurance Co.,
4 Ill.App.2d 60, 66, 123 N.E.2d 165, 168 (1954). The court
considers that it simply cannot be gainsaid that the deceased's
treatment for a malignant tumor would materially affect the
acceptance of the risk by the company, particularly since she was
still going to the Institute for check-ups when she applied for
the life insurance policy.
Defendant also points out, and it is not disputed, that the
insured did not die from the affliction with respect to which
information was withheld. It appears to be settled law, at least
in Illinois, that such cause of death is not necessary for the
insurance company to cancel a policy. Campbell v. Prudential Life
Insurance Company of America, 15 Ill.2d 308, 155 N.E.2d 9 (1958).
Accordingly, the motion is allowed and summary judgment in
favor of the plaintiff is entered.
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