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Anderson v. Creighton

MARCH 24, 1975.

STELLA L. ANDERSON, EX'R OF THE LAST WILL AND TESTAMENT OF OSCAR W. ANDERSON, DECEASED, PLAINTIFF-APPELLEE,

v.

W.L. CREIGHTON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of La Salle County; the Hon. WILLIAM DENNY, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendants appeal from a judgment for plaintiff in the sum of $12,363.20 entered upon a jury verdict in plaintiff's action to recover the value of a life insurance policy which it was alleged defendant's stated would be provided as an incident to a retail installment contract for farm machinery.

Defendant, Creighton, operated a farm machinery agency and represented Allis-Chalmers Manufacturing Company. Defendant, Allis-Chalmers Credit Corporation, is a wholly owned subsidiary of the Manufacturing Company. Defendant, Dewey, was the district sales manager for the latter. Upon plaintiff's motion, the defendant, Prudential Insurance Company, was dismissed from the case at the close of plaintiff's evidence.

Plaintiff alleged that on August 11, 1970, the decedent, Oscar Anderson, executed a retail installment contract in reliance upon assurances and representations that credit life insurance was available to him and that the cost of such insurance was included in the annual percentage rate of 15 1/2 per cent in the retail installment contract.

Defendants deny that decedent was covered by the provision for life insurance, deny that decedent made any inquiry concerning the life insurance and alleged certain affirmative defenses. The first of such defenses is that on or about August 11, 1970, Oscar Anderson executed a "Purchasers Application for Credit", which included a provision that group life insurance in connection with the indebtedness was "contemplated" and stated:

"I further understand that such insurance is not available to me if I have attained 66 years of age on the date of indebtedness."

Immediately beneath and immediately above his signature, Oscar Anderson filled in the date of his birth, August 14, 1903.

A second defense is that the executed retail installment contract "on the second page," which is after the place for signature of the parties, appears a heading "Notice of Proposed Group Life Insurance," followed by several paragraphs which include:

"[I]f this Contract is assigned, or otherwise transferred to Allis-Chalmers Manufacturing Company, group life Insurance protection * * * is contemplated in connection with the indebtedness hereunder. No payment will be collected from or charged to the buyer for such insurance.

In no event however, will insurance under the group life insurance be provided with respect to the indebtedness if * * * such indebtedness originates on or after the buyer's attainment of the age of 66 * * *."

Also pertinent for later consideration is the concluding paragraph beneath which notes:

"If the insurance becomes effective, a certificate of insurance describing the coverage afforded will be furnished within 30 days. If such insurance does not become effective, advice thereof will be given to the buyer." (Emphasis supplied.)

It is not disputed that such life insurance coverage was included in the finance rate charged under the contract and that decedent was never advised that the insurance did not become effective.

The record shows that decedent farmed with his sons, Roland and Gerald. Checks drawn in payment upon the contract before his death were made as "Oscar W. Anderson & Sons, by O.W.A." The record is clear that in all of the negotiations incident to the sale it was understood that Gerald and Roland were discussing the transaction with Oscar and procuring his agreement on the details. In the summer of 1970, the sons, jointly and severally, made inquiries concerning the purchase of equipment from the Creighton Agency and asked concerning the terms of purchase. Lowell Anderson, who is no ...


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