admissions in pleadings may be argued to the jury
How later courts described this case
- admissions in pleadings may be argued to the jury
Written by the judges who cited it.
The opinion
Mr. Justice Underwood, dissenting:
The majority state that there was sufficient evidence adduced at the trial to justify submitting to the jury the questions of materiality of the misrepresentations made in the policy application and whether the broker was acting as agent for the insured or the insurer. With these propositions I cannot agree.
It is undisputed that Faroll had suffered from a cataract on his left eye and underwent an operation for its removal. He had recovered, at the time the application for the instant policy was made, 20/20 corrected visual accuity in that eye but only concerning straight-ahead vision. His right eye was around 20/200, the equivalent of economic blindness. (See regulations issued pursuant to the statute (Ill. Rev. Stat. 1963, chap. 23, par. 702.).) In my judgment, failure to divulge his eye afflictions pursuant to the quite specific interrogatory with regard thereto amounts to a material misrepresentation as a matter of law. (See Weinstein v. Metropolitan Life Ins. Co. 389 Ill. 571, 577 .) To state the proposition that failure to apprise the insurer of serious eye affliction in an application for accident insurance does not materially affect the risk sought to be imposed upon the insurer sufficiently demonstrates its incompatibility with reality. The application here inquired: “Is your sight in any way impaired or have you ever suffered from any afflliction of the eyes ?” The answer was “No”, despite the undisputed seriously impaired vision. Under the circumstances here it seems to me unwarranted to charge the insurer with liability because, as the majority suggests, it failed to ask more specific questions.
It is not necessary, moreover, that the misrepresentations be made with intent to deceive, and, although it taxes one’s credulity to believe that a broker who knew an applicant socially for 18 years and who had obtained prior insurance policies for him did not in fact know of his eye afflictions and intend to deceive the insurer by stating in the application that there were none, it is sufficient under the law that the misrepresentations materially affect the risk involved. (Campbell v. Prudential Ins. Co. 15 Ill.2d 308 .) In my judgment the opinion of the appellate court adequately disposes of the question of matériality.
The majority pass easily over the question of agency by stating that “[ejxamination of the record shows that the issue was in the case and that evidence was introduced supporting it,” thus concluding that the inquiry was properly submitted to the jury. Examination of the evidence in this record on the issue of agency in my judgment compels the conclusion that, as a matter of law, the broker was acting as agent for the insured. Reference to Supplee’s evidence deposition itself establishes that the insurer did not first set him in motion, but, rather, that he acted originally upon his own initiative. He testified that he was a “broker”, defined by the Insurance Code as a person who acts on behalf of the assured (Ill. Rev. Stat. 1963, chap. 73, par. 1065.37); that he “induced” Far'oll to apply for the instant policy and that he endeavored to get it for him. The only factor appearing in this record indicating that Supplee was not Faroll’s agent is that he was paid his commission by the insurer. In my opinion, to assert that the payment of the commission suffices of itself to take the question of agency to the jury abolishes the distinction between “agent” and “broker”. Viewing the evidence on this question in a light most favorable to the plaintiff, I am nevertheless compelled to conclude that Supplee was acting as agent for the insured, and the misrepresentations cannot, therefore, be charged to the insurer.
I would accordingly affirm the judgment of the appellate court.
Mr. Justice Schaefer joins in this dissent.