text:
    Mary Kolodziej, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,680.

      Opinion filed December 30, 1940.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and Joseph E. Bell, of Chicago, of counsel.
    Vincent Gf. Gallagher, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This action was brought by Mary Kolodziej, the beneficiary named in a certificate issued by defendant, Metropolitan Life Insurance Company, evidencing the coverage of Paul Kolodziej, husband of said Mary Kolodziej, for life insurance under the terms of a group policy of life insurance also issued by defendant, covering certain employees of the Allied Steel Castings Company. The trial of the case before the court without a jury resulted in a finding and judgment against defendant for $625, from which judgment defendant appeals.

Plaintiff’s complaint alleges in substance that she is the widow and beneficiary named in the life insurance certificate issued to Paul Kolodziej; that said Paul Kolodziej was an employee of Allied Steel Castings Company and was insured under its group policy on the date of his death; that on November 9,1933, she notified defendant in writing that the insured had died on October 14, 1933; and that she made demand on the insurance company for the payment of $500, the face amount of the certificate.

Plaintiff’s complaint set forth the certificate of in-» snrance issued by defendant to the insured, the following portions of which are pertinent to this proceeding :

“Formula . . .

“Discontinuance of Insurance

“ (a) The insurance on any Employee insured hereunder shall cease automatically thirty-one (31) days after the date of the termination of employment of such Employee, except as provided in the second paragraph below.

‘ ‘ Cessation of active work by an Employee shall be deemed to constitute the termination of his employment, except as provided in the next paragraph.

“In case of the absence of an Employee from active work on account of sickness or injury, or on account of retirement on pension, or for not longer than two (2) months on account of leave of absence or temporary lay-off, the employment of such Employee may, for the purposes of this Policy, be deemed to continue until terminated by the Employer. The insurance hereunder on such Employee shall cease thirty-one (31) days after the date of such termination by the Employer, as evidenced to the Company by the Employer, whether by notification or by cessation of premium payment on account of the insurance hereunder of such Employee. ’ ’ (Italics ours.)

Defendant’s answer to the complaint admits that plaintiff is the beneficiary named in the certificate issued to Paul Kolodziej under and subject to the terms and conditions of the group policy but denies that Kolodziej was an employee of the Allied Steel Castings Company at the time of his death on October 14, 1933, or for more than 31 days prior thereto. It further denies that the insurance certificate was in force and effect on the day of the death of the insured on October 14, 1933, because of the group policy provision terminating the insurance coverage automatically thirty-one days after the date of the termination of the employee’s employment. The answer then avers that the employment of Paul Kolodziej with the Allied Steel Castings Company terminated on September 8, 1933, which was more than 31 days prior to October 14, 1933, the date of the death of insured; that it was notified by the employer, Allied Steel Castings Company, prior to October 14, 1933, that the employment of Paul Kolodziej had terminated in accordance with the provisions of the certificate and the group policy; and that'the insurance on said Paul Kolodziej was canceled by defendant pursuant to said notice prior to October 14, 1933.

Defendant’s theory as stated in its brief is “that Paul Kolodziej was not in the employ of the Allied Steel Castings Company on October 14, 1933, nor at any time within thirty-one days prior thereto; that the Allied Steel Castings Company notified the defendant insurance company that his employment had terminated on September 8, 1933 and that defendant was instructed to cancel the insurance of Paul Kolodziej thirty-one days after the termination of his employment, or on October 9, 1933. . . . No premium was paid on the certificate after September 8, 1933. The certificate was canceled at the direction of the employer as of October 9, 1933, and no insurance was in force and effect on the date of death of the former insured.”

Plaintiff’s theory is that “the insured was temporarily laid off by the Allied Steel Castings Company on September 8, 1933; that the temporary layoff did not put him in the classification of a discharged employee and that, therefore, the insurance under the group policy by its terms was in force on the date of his death.”

The evidence disclosed that Kolodziej was an employee of Allied Steel Castings Company and that August 8, 1933, a certificate of life insurance for $500 was issued to Mm in accordance with and pursuant to the terms and provisions of the employer’s group policy; that one month thereafter, September 8, 1933, Kolodziej was laid off because the company had no more work for him at that time; that he did not work for Allied Steel Castings Company between that date and October 14, 1933, the date of his death; that on October 4, 1933, the Allied Steel Castings Company forwarded a report to defendant containing the request that the insurance be canceled on certain of its “former employees,” including Kolodziej, as of October 9, 1933; that this report set forth that Kolodziej had been discharged by the Allied Steel Castings Company on September 8, 1933; that the premium for one month on the policy of the insured was paid by his employer to the defendant, Kolodziej paying three fifths of said premium by means of a deduction from his salary; and that no further premium was paid on account of the coverage of Paul Kolodziej under the group policy after September 8, 1933; nor prior to his death on October 14, 1933.

Walden F. Dury, an.employee of defendant insurance company, testified by deposition that the records of the group policy covering the employees of the Allied Steel Castings Company were kept under his supervision; that in the course of his duties he received notice of discontinuance of individual coverage of employees of the Allied Steel Castings Company under the group policy; that under date of October 4, 1933, he received written notice from the Allied Steel Castings Company advising defendant of the discontinuance of insurance on a number of said Castings Company’s employees, the name of each individual employee involved being set forth in the notice; that this notice stated that Kolodziej was discharged from his employment September 8, 1933, and gave that as the reason for the requested cancellation of his insurance; that said notice also stated that the cancellation of the insurance of Kolodziej was to be effective as of October 9, 1933. He further testified that the insurance was canceled by defendant as to Kolodziej on the date requested.

The real question presented for determination is whether the insurance was in force on the date of the death of Paul Kolodziej and that question necessarily involves the further questions as to (1) whether the employment of the insured by the employer was terminated before the death of the insured and (2) whether his insurance was legally canceled prior to his death.

This is not a case where a certificate of insurance under a group policy was issued gratuitously to an employee by his employer. Kolodziej paid three fifths of the premium on the policy and the provision therein for extended insurance constituted a valuable right to him.

In order to determine whether the insurance on the life of Kolodziej was in force October 14, 1933, the date of his death, it is first necessary to determine whether he was discharged from his employment September 8, 1933, or whether he was merely temporarily laid off on that date. If he was discharged on September 8, 1933, his insurance would have continued in force for 31 days after said date or until October 9, 1933. If he was only temporarily laid off on that date, the insurance under his policy was “deemed” to continue in effect for two months unless thereafter during that period the employer saw fit to terminate his employment by discharging him.

As to what actually occurred when the services of Kolodziej were dispensed with by his employer on September 8, 1933, we think that all the evidence in the record on the subject shows clearly and conclusively that he was not discharged on that date but that he suffered a temporary layoff. Elmer J. Skelton, who was the general foreman for the Allied Steel Cast-' ings Company and the person in immediate authority over the insured prior to and on September 8, 1933, testified that he knew Kolodziej in his lifetime; that “I recall knowing him the last two years or so . . . when he worked there . . . the last time;” that he recalled when Kolodziej was “laid off last time;” that “I spoke to him personally about it ... we had an extra shift that we laid off on account of the work being such as it was, it dropped down;” and that if the work dropped below a certain level some men were laid off until the work was restored.

Joseph Benzing, a timekeeper for the employer, testified that the company had no written records showing that the insured was laid off September 8, 1933, but that it was a fact that he was laid off and that it was also-a fact that he was laid off on that date because there was no more work for him at that time.

Mrs. Wanda Kruczek, daughter of the insured, testified that she was shown a written time record by the timekeeper Benzing, and that opposite her father’s name on such record appeared the notation “laid-off.”

A letter was received in evidence written by John R. Swanson, an accountant employed by Allied Steel Castings Company, to the attorneys for plaintiff, which stated, in part, that Kolodziej “was laid off on September 8, 1933, because we had no more work for him.”

Thus the status of the insured on September 8, 1933, as a temporarily laidoff employee was established. That status, carrying with it, as it did, the valuable right to extended insurance, having been established, it surely could not be destroyed or changed to the detriment of the insured or his beneficiary without notice to him, regardless of what might thereafter have transpired between his employer and the insurance company. It is true that under the terms of the policy the employer had the right any time after September 8, 1933, to change the status of Kolodziej Toy discharging him, but, in so far as the evidence discloses, it never exercised that right. It is admitted that no notice was given to the insured that he was discharged or that his insurance was canceled subsequent to September 8, 1933, and prior to his death by either the employer or the insurance company, but it is insisted that no such notice to him was necessary. We are unable to agree with defendant’s contention in this regard. While it is the rule as to group'policies of life insurance that for some purposes the employer in its dealings with the insurance company is considered to be the agent of the employee, it cannot be the law that the employer is such agent when, without the knowledge of the insured employee or notice to him, the employer deals with the insurance company in such a manner as to deprive or to attempt to deprive the employee or his beneficiary of substantial rights under the policy.

Both the group policy and the certificate of insurance contain a “Formula” for the “Discontinuance of Insurance.” It will be noted that, while in the first paragraph of such “Formula,” heretofore set forth, it is stated that “the insurance on any Employee insured hereunder shall cease automatically thirty-one (31) days after the date of the termination of employment of such Employee’ and in the second paragraph thereof it is stated that “cessation of active work by an Employee shall be deemed to constitute the termination of his employment,” both paragraphs conclude with a reference to certain exceptions contained in a succeeding paragraph. Included in these exceptions is the following provision: “In case of the absence of an Employee from active work . . . for not longer than two months on account of . . . temporary layoff, the employment of such Employee may, for the purpose of this Policy, be deemed to continue until terminated by the employer.” The certificate of insurance having been in the possession of the insured, it is fair to assume that he read and understood this provision and relied upon it. Under the foregoing exception, considered in the light of the evidence, the status of Kolodziej was fixed on September 8, 1933, as that of an employee temporarily laid off, whose employment was “deemed” to continue for two months unless during that period it was terminated by the employer. There is no evidence in the record that the employer terminated the employer-employee relationship by discharging the insured either on September 8, 1933, or at any time prior to his death. But it is contended that the notice of October 4, 1933, from the employer to the insurance company advising that Kolodziej had been discharged September 8, 1933, was sufficient to authorize defendant to cancel this policy. This policy does provide that at any time during the two month period of a temporary layoff “the insurance ... on such employee shall cease” 31 days after the date of the termination of the employment by the employer, “as evidenced to the Company by the Employer, whether by notification or by cessation of premium payment on account of the insurance hereunder of such Employee.”

However, the notice of October 4, 1933, did not reflect the' truth as to the status of the insured when his services were dispensed with on September 8, 1933, and the fact that this notice erroneously stated that Kolodziej was discharged on September 8, 1933, could not be legally effective to show his actual discharge on that date in view of the overwhelming preponderance of the evidence that he was not discharged on that date but temporarily laid off. It follows that if such notice was not effective to terminate the employment of Kolodziej by showing his discharge on September 8, 1933, it was not effective to show that he was discharged on any date between September 8, 1933, and October 14,1933, the date of his death, Therefore no proper notification evidencing the termination of the employment of the insured having been given the defendant and his status as a temporarily laidoff employee having continued from September 8, 1933, to October 14, 1933, which was well within the two month temporary layoff period specified in the policy, “the employment” of Kolodziej “may, for the purpose of this policy, be deemed to continue.”

It is also contended that defendant had the right to cancel the policy when it did, as of October 9, 1933, because of the “cessation of premium payment on account of the insurance hereunder of such Employee.” Cessation of payment of the premium by whom? We have carefully examined both the certificate of insurance issued to Kolodziej and the group policy and find therein no provision specifically covering the payment of premium during a period of temporary layoff. We do find, however, that the group policy provides that “all premiums are payable by the employer” and that “failure of any Employee to make contribution when due, as required by the Employer, to the cost of his insurance hereunder shall be deemed notice to the Employer that his insurance hereunder is to be discontinued.” As to the latter provision there is no evidence that the employer “required” or requested the insured to pay any premium during his temporary layoff.

In so far as we have been able to ascertain the precise question presented here has not heretofore been presented to or decided by a court of review in this or any other jurisdiction under comparable facts and similar policy provisions. It would therefore serve , no useful purpose to discuss the numerous cases cited in the briefs of the parties.

We are impelled to hold that, under the provisions of both the certificate of insurance issued to Kolodziej and the group policy, the insured, although he had been temporarily laid off September 8, 1933, continued in the employment of Allied Steel Castings Company until October 14,1933, the date of his death, that his insurance was in force on that date, and that plaintiff beneficiary is entitled to recover.

For the reasons stated herein the judgment of the superior court is affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Presiding Justice Friend.

license: Public Domain

text:
    People of the State of Illinois ex rel. Mercantile National Bank of Chicago, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 41,119.
    opinion filed November 26, 1940;
    rehearing denied and opinion slightly modified January 8, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; Sydney B. Drebin and J. Herzl Segal, Assistant Corporation Counsel, of counsel; Markman, Donovan & Sullivan, for appellee; John P. Sullivan and Henry O. Nickel, of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published. in full.’’


author: Justice McSurely.

text:
    In re Estate of Virgil M. Brand, Deceased. Horace L. Brand, Appellant, v. Armin W. Brand, Appellee.
    Gen. No. 41,356.
    opinion filed December 27, 1940.
    Ernest Sehein and Ernest Saunders, for appellant; Melnerney, Epstein & Arvey, for appellee; John L. Melnerney and Elmer Gertz, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    Robert L. Simons, for use of National Builders Bank of Chicago, Appellee, v. University State Bank, Appellant.
    Gen. No. 40,760.

      opinion filed December 30, 1940.
    Adams, Sokolow & Rubin and Landis & Landis, for appellant; Alvin Landis, of counsel; Ringer, Reinwald & Sostrin, for appellee; M. Lester Reinwald and Morris Sostrin, of counsel.
   Opinion by

Presiding Justice Friend.

“Hot to be published in full.’’


text:
    Annie C. Olsen, Appellant, v. Evanston Bus Company, Appellee.
    Gen. No. 41,186.
    opinion filed December 30, 1940;
    rehearing denied January 15, 1941.
    James J. Barbour and John B. King, for appellant; Heth, Lister & Flynn, for appellee; Thomas E. Griffin, of counsel.
   Opinion by

Presiding Justice Friend.

“Hot to be published in full.’’


text:
    Mary Maciejewski, Appellee, v. Guy A. Richardson, Receiver et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,206.

      opinion filed December 30, 1940;
    rehearing denied January 15, 1941.
    Frank L. Kriete, C. C. Cunningham and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel; Wolfberg & Kroll and Marion J. Hannigan, for appellee.
   Opinion by

Presiding Justice Friend.

, “Not to be published in full.”


author: Justice Soanlan.

text:
    Harry D. Hodges, Appellee, v. Charles A. Humphreys, Appellant.
    Gen. No. 40,939.
    opinion filed December 30, 1940.
    Rawlins & Wright, for appellant; Fay Warren Johnson, of counsel; Cassels, Potter & Bentley, for appellee; Leslie H. Vogel and Horace G. Marshall, of counsel.
   Opinion by

Justice Soanlan.

‘ ‘Not to be published in. full.”


author: Justice Scanlan.

text:
    I. D. Opat, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,322.
    opinion filed December 30, 1940;
    rehearing denied and opinion slightly modified January 15, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Alexander J. Resa, Sydney R. Drebin and Louis H. Geiman, Assistant Corporation Counsel, of counsel; I. D. Opat, -pro se; William R. Peacock, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    Reginald V. Duckett, Appellee, v. Chicago and West Towns Railways, Inc. et al., Defendants. Louise Ghilardi, Appellant.
    Gen. No. 41,337.

      opinion filed December 30, 1940.
    Oplatka, Pavek & Oplatka and Golan & Golan, for appellant; Samuel L. Golan, of counsel; ño appearance for appellee.
   Opinion by

Justice Scanlan.

‘ ‘Not to be published in full.”


author: Mr. Justice Huffman

text:
    Harriett A. Gray, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 9,544.

      Opinion filed December 19, 1940.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and Albert E. Hallett, Jr., of Chicago, of counsel.
    Lathrop J. Hunt, of St. Charles, for'appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

On March 1, 1937, appellant issued its policy of life insurance to William C. Gray, appellee’s husband, in the principal sum of $1,000. On November 11, 1938, he died from the effects of taking potassium cyanide. Appellee was named as beneficiary in the policy. She brought this action for recovery because of appellant’s denial of liability under section 5 of the policy, which section is as follows:

“5. Suicide: If the insured, within two years from the date of issue hereof, die by his own hand or act, whether sane or insane, the liability of the company hereunder shall be limited to an amount egual to the premiums which have been received, withoujt interest.”

Appellant filed its answer to the complaint wherein it denied liability by virtue of the above section. It alleged that by the terms of the policy, its liability to appellee was limited to the sum of $75.80, which was the amount of premiums that had been paid, and made tender of this amount. The plaintiff made reply to the answer, in which she denied that the insured came to his death by his own hand or act, and denied that appellant’s liability was limited to the sum of $75.80. The cause was heard by jury which returned a verdict for appellee in the sum of $1,000. Appellant brings this appeal from judgment rendered thereon.

The deceased by trade was a tool and diemaker. He had followed this occupation for 18 years. During this time he used potassium cyanide in the process of case-hardening steel. He was acquainted with its deadly properties. The cyanide which he was accustomed to using came in chunk or ball form and not in a powder or crystal form. These balls were approximately one ounce in weight and one inch in diameter. It appears from the evidence that the deceased had been addicted to the excessive use of intoxicating liquors for a number of years; that he would go upon protracted “sprees”; that his employment was becoming uncertain in that he was compelled to change it frequently, and that his work was irregular because of his physical unfitness due to his above habit. It further appears that he suffered from stomach trouble which.had been pronounced ulcers. His last day of employment was Nov. 5, 1938. He died on Nov. 11, 1938. During this interim, he continued his drinking habit. In the early afternoon of Nov. 11, he went to a drug store where he purchased one of the balls of cyanide. He stated to the druggist that he wanted it for hardening metal on a gun. That afternoon appel-lee returned home at about four o ’clock. She found the deceased lying upon his bed. Life was extinct. It is undisputed that he came to his death by the taking of cyanide. Part of a ball of cyanide was found upon the window sill near his bed, a glass and spoon were on the dresser and still retained the sediment and odor of cyanide. The evidence shows that the deceased was in the habit of using alka-seltzer tablets and a stomach powder to relieve his distress. Both of these articles were upon his dresser at the time in question. Alka-seltzer tablets are shown to be flat and wafer-like in shape.

Appellant raises two points for reversal. The first, that the verdict is against the manifest weight of the evidence, and the second, that the court erred in giving two instructions to the jury on behalf of appellee. These instructions had to do with the presumption against suicide and advised the jury that when the dead body of a person was found under such circumstances and with such injuries that the death might have resulted from negligence, accident or suicide, the presumption was against death by suicide, and in favor of death by one of such other causes, and that the burden was upon the defendant to overcome this presumption.

Appellant refers to the case of New York Life Ins. Co. v. Gamer, 303 U. S. 161, 82 L. Ed. 726, 114 A. L. R. 1218, in support of its contention that the giving of such instructions was erroneous. That was a case where recovery was sought for double indemnity for accidental death under a life insurance policy, in which the defendant alleged suicide on the part of the insured. There was evidence from which the jury might have found either way. It was there held to be reversible error to charge the jury that the defendant assumed the burden of proving by a preponderance of the evidence that the insured committed suicide. However, a distinction by the above court appears to exist with respect to the burden of proof in life insurance cases where the insurer has insured against death from any cause except suicide, and cases in which the plaintiff avers on an accident policy or on a double indemnity provision of a life insurance policy. The above court in the case of Home Benefit Ass’n v. Sargent, 142 U. S. 691, 35 L. Ed. 1160, 1166, adopts the rule that if death from any cause except suicide is insured against, the burden is on the insurer to prove the exception. In the case now before us, death from any cause except suicide appears to have been insured against. Under such circumstances, the burden is on the defendant to prove the exception. Ferrero v. National Council of Knights and Ladies of Security, 309 Ill. 476, 480; Knights Templars’ & Masons’ Life Indemnity Co. v. Crayton, 209 Ill. 550, 557; Supreme Tent Knights of Maccabees v. Stensland, 206 Ill. 124; Wilkinson v. Ætna Life Ins. Co., 240 Ill. 205, 212, 214; American Home Circle v. Schneider, 134 Ill. App. 604.

We now come to the question whether the verdict is supported by the evidence. Although the general rule is that suicide will not be presumed, such presumption is a rebuttable one and cannot prevail except in the absence of evidence to the contrary. Where facts and circumstances appear which are contrary to such presumption, the presumption is said to vanish. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 397; Lohr v. H. Barkmann Cartage Co., 335 Ill. 335, 340; Osborne v. Osborne, 325 Ill. 229; Brown v. Brown, 329 Ill. 198; Sharp v. Sharp, 333 Ill. 267; Coal Creek Drainage & Levee District v. Sanitary District of Chicago, 336 Ill. 11. Such presumption cannot prevail against evidence sufficient to refute it. Accordingly, the presumption against death by suicide is overcome by proof of circumstances inconsistent therewith, and inconsistent with any other reasonable theory than that of suicide. There are cases of this character where it might be said that judgments have been allowed to stand where the finding by the jury was on mere conjecture that death had been produced by some other circumstance than that of suicide, when all the facts and circumstances existing in the case pointed to and were consistent with the theory of suicide, and inconsistent with any other reasonable theory. This situation is well illustrated in the case of Agen v. Metropolitan Life Ins. Co., 105 Wis. 217; 76 Am. St. Rep. 905.

This case presents a situation of a man who for many years had been accustomed to using cyanide in this form in his daily work. He was also familiar with alka-seltzer tablets and stomach powder, as he had been using them for stomach distress. We are thus confronted with the deceased’s familiarity with these things and the use of them. About two hours before he was found dead, he purchased a ball of cyanide. Part of a ball of cyanide was found in his room. Cyanide had been mixed in a glass. Deposits thereof were still upon the glass and spoon. The only theory upon which the judgment can stand is, that he took the cyanide-by mistake, thinking he was taking either an alka-seltzer tablet or stomach powder. In order to do this, we must say that the deceased crumbled cyanide into a water glass from a ball of the substance, when he had had so many years experience in the use thereof, mixed it with water, and drank it, under the mistaken belief that he was using an alka-seltzer tablet or that he was mixing stomach powder. The facts are too inconsistent with the presumption against suicide to permit the presumption to prevail. It is considered that the evidence is sufficient to refute such presumption, in that the facts and circumstances existing in the case point to and are consistent with, the theory of suicide and inconsistent with any other reasonable theory.

The verdict therefore must be considered as against the manifest weight of the evidence. The judgment is reversed and cause remanded.

Reversed and remanded.


text:
    Margaret Gardner and Frank Gardner (Margaret Gardner, Appellee), v. Hazel Kelly, Appellant.
    Gen. No. 9,578.

      Opinion filed December 19, 1940.
    Rehearing denied February 4 and February 6, 1941.
    Warner & Warner, of Dixon, for appellant; H. C. Warner, of counsel.
    Gerald Jones and Dixon, Devine, Bracken & Dixon, of Dixon, for appellee; Robert L. Bracken, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was an action by appellee to recover damages for personal injuries sustained while riding as a guest in the automobile of appellant, at a time when the same was being operated by appellant. The count of the complaint wherein appellee’s husband sought damages, was dismissed at the instance of the plaintiffs below. Trial resulted in verdict for appellee in the sum of $10,000, and it is from a judgment on this verdict that appellant brings this appeal.

On November 9, 1938, appellant accompanied by four other ladies, drove from their home at Dixon, Illinois, to the city of Rockport, Illinois, where they spent the day visiting a friend. At about five that afternoon they started to return home to Dixon, traveling a State highway. While on the road home and at a place along the highway where the pavement was constructed upon an embankment about six feet high, ap-pellee and the two ladies riding in the back seat with her, stated that they heard a funny noise. Shortly thereafter, the car swerved, left the road, and rolled down the embankment. Appellee sustained a fractured spine, which has terminated in most unfortunate results. She has suffered a paralysis of the lower extremities and a loss of control of the normal bodily functions. The accident happened at about dusk, and in the open country. The lights of appellant’s car were then on.

The evidence on behalf of appellee discloses that the car was being driven at about the speed of 35 miles per hour. Two of appellee’s witnesses, Mr. Lutin and Mr. Lye were riding in a car about 150 feet back of appellant’s car. They had been in this position for about a mile, when they noticed appellant’s car swerve across the road and turn over the embankment. They were the first to reach the car and to assist the occupants. They state that the car had been traveling about 30 or 35 miles per hour. The evidence of the mechanic who brought the car in from the scene of the accident, is to the effect that it was a sedan, that one of the rear tires “was flat,” that he took off that wheel and placed it in the back of the car, put on the extra wheel and tire, and took the car to Aurora. The evidence of appellee’s witness Lee, a service station man, is to the effect that the tire had received a puncture by a nail, which caused it to become deflated. He further states that he had put a new fuel pump on the car shortly before the accident and had tested the car on the road and found it to be in good condition; and that the tires appeared to have been driven about 2,000 miles.

Two witnesses testified on behalf of appellant, her husband and herself. Mr. Kelly stated that he went to the scene of the accident as soon as he heard about it ; that he examined the tire on the rear wheel and found that it was punctured by a nail; that it was a Goodyear tire and had been driven about 4,500 miles. Appellant testifies that the trip was arranged the day previous ; that she was driving upon the pavement when the accident occurred; that she had driven automobiles about 15 or 16 years; that in her opinion she was going about 35 miles per hour; that immediately before the accident, she heard a thumping noise, which appellee and the other ladies called her attention to just before the car swerved. She states that no one asked her to stop the car, but when she heard the thumping noise, she put her foot on the brake, and before she could stop the car, it swerved.

Appellee and the two ladies riding in the back seat with her, first noticed the thumping noise and called appellant’s attention to it. There is no evidence on the part of any of the witnesses that appellant was requested to stop the car. When appellant was first advised by the occupants of the rear seat that they heard a peculiar noise, she responded that the car seemed to be running all right. It was but a moment or two until the tire became low enough in air pressure. so that the thumping noise was audible to appellant, when she undertook to stop.

Appellee’s right to recovery in this case is governed by the guest statute of this State (ch. 951/2, sec. 58a). It is urged by appellant that there is no evidence tending to prove wilful and wanton misconduct on her part with respect to the operation of the automobile, so as to give rise to liability under the above section. The question of wilful and wanton misconduct in cases such as this, has been so ■ frequently before the courts and so fully discussed, that we do not deem it necessary to review the same here. Although the question whether an act constitutes wilful and wanton misconduct depends upon the circumstances of each case, yet the party so acting or failing to act, must be conscious of his conduct and must be conscious from his knowledge of the surrounding circumstances and conditions, that such conduct will probably result in injury. As stated in the case of Schoenbacher v. Kadetsky, 290 Ill. App. 28, p. 34, “the term willful as used in such cases implies intent or purpose, while the term wanton expresses a reckless disregard of consequences.” Again in the case of Farley v. Mitchell, 282 Ill. App. 555, at p. 558, it is said that wilful and wanton misconduct is, “such absence of care for the person of another as exhibits a conscious indifference to consequences.” We do not consider that a mere error of judgment, having no evil intent or purpose, nor any consciousness of probable injury, will give rise to the degree of a wilful or wanton wrong or injury.

There is nothing in this record to indicate that appellant knew there was a nail in the rear tire, until it became sufficiently deflated to make itself manifest. Her evidence is that she endeavored to stop the car upon hearing the noise. The evidence fails to indicate that she was driving in a reckless manner or at a high rate of speed. Quite to the contrary, it appears that she was driving at a very moderate rate of speed, and upon becoming aware-of the fact that something was wrong, endeavored to bring the car to a stop. In attempting this, it swerved off the pavement and rolled down the embankment.

Appellee’s injuries are most regrettable. However, the court is confronted with the necessity made by the statute, that is, that there must be sufficient evidence tending to prove the charge of wilful and wanton misconduct on the part of appellant, before appel-lee can have recovery. Here we do not find any evidence tending to prove such conduct.

The judgment is reversed as being against the manifest weight of the evidence.

Reversed.


author: Mr. Justice John J. Sullivan

text:
    John Russell, Administrator of Estate of William Russell, Deceased, Appellee, v. Guy A. Richardson, Receiver et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 40,714.

      Opinion filed December 30, 1940.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellants; John R. Guilliams, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action under the Injuries Act to recover pecuniary loss occasioned by the death of William Russell, alleged to have resulted from injuries sustained December 23, 1936, when he was struck by the front end of a westbound street car on the west crosswalk of the intersection of 59th and Peoria streets in Chicago. A motion for a directed verdict was made by defendants at the close of plaintiff’s evidence, which was all the evidence offered or received' on the trial. The ruling on said motion was reserved and the motion was taken under advisement. The case was submitted to the jury, which found defendants guilty and assessed plaintiff’s damages at $2,000. Defendants’ motion that the trial court rule on their motion for a directed verdict and enter a judgment of not guilty notwithstanding the verdict was denied and judgment was entered on the verdict on January 7, 1939. This appeal followed.

The evidence disclosed that the accident occurred shortly after 7:30 in the morning. It was a little misty but it was light enough so a person could see the street car at Halsted street, which was two blocks away. 59th street is a perfectly straight street. The street car was making the usual noise made by street cars as it came from Halsted street, passed Green street and came up to Peoria street. There was no traffic of any kind on the street between the street car in question and the place of the accident and nothing to obstruct the view of the street car at any time as it approached and crossed Peoria street. At the northeast corner of 59th and Peoria streets there were no buildings. The street car was moving west at a speed of 20 to 25 miles an hour, which witnesses said was the usual speed of street cars on 59th street. When the street car was between Green and Peoria streets the motorman threw off the power and slackened the speed of the ear a little but put the power on again right away. Peoria street is designated as a “stop street” for passengers to board or alight from street cars operated on 59th street. Two men were standing east of Peoria street waiting for a westbound street car. One of them said they were standing 6 or 7 feet east of the east crosswalk of Peoria street and the other said that they were standing 11 or 12 east of Peoria street.

The decedent, William Bussell, was 20 years old and lived at 5709 S. Green street. Green street is one block east of Peoria street. Bussell was employed as a stenographer in the traffic department of the Baltimore & Ohio Bailroad Company. He was in perfect health and his eyesight and hearing were good. He had lived in that neighborhood for some time and was well acquainted with the intersection where the accident happened. On the morning in question Bussell left his home between 7:30 and a quarter to eight and was walking south on the west side of Peoria street, presumably intending to take an eastbound car on 59th street. The distance from the north curb of 59th street to the first rail of the westbound track is from 10 to 12 feet. Peoria street is about 30 feet wide.

Howard Bunyan testified that he was a passenger on the westbound 59th street car that was involved in the accident; that he was standing on the front platform of the street car and had an unobstructed view of 59th street; that he was looking west and north; that Green street is one short block west of Halsted street and Peoria street is one short block west of Green street; that Green street is not a “stop street” for street cars but that Peoria street is; that when he first saw him, Bussell was walking south at a fast walk on the west sidewalk of Peoria street and about 15 feet north of the north curb of 59th street; that at that time the front end of the street car was 25 or 30 feet east of Peoria street and the car was traveling at a speed of 20 to 25 miles an hour, making the usual noise; that there were two or three people standing a little east of Peoria street, waiting for the westbound street ear; that there was nothing to obstruct or interfere with his view of Bussell and there was nothing between Bussell and the moving car; that the street car continued to move at the same rate of speed in entering Peoria street, which was the usual speed of street cars; that “the man stepped from the curb just about the time the street car was leaving the east side of Peoria street, that is, the front of the car and I didn’t see him turn to look at the car at all . . . he walked right on straight across the street in a fast walk and it seemed to me that I felt the car was going to hit him because he didn’t seem to turn his head and he walked right straight across the track and just about as his foot hit the first rail the car struck him in the head”; that the “front end of the car was just about even with the east side of Peoria street . . . still going along in about the usual speed” when Bussell reached the curbstone on the north side of 59th street; that he saw no eastbound street car; that the northeast corner of 59th and Peoria streets was a vacant lot; that the motorman applied the brakes when the street car was in the center of Peoria street as soon as he saw the man step from the curb and “made every effort to stop the car”; that “when Bussell was three or four feet from the north rail of the westbound track the car was probably within ten or fifteen feet from him, maybe a little closer than that”; that the motorman continued to keep the brakes on until the accident occurred; that Bussell never stopped or slackened his pace; that he kept right on going and “just about as his foot hit the first rail the car struck him in the head”; that “he was thrown about fifteen feet to the gutter and to the right of the street car, the side from which he was coming”; and that the witness did not hear the motorman ring the gong at any time.

Charles Farrell testified that he was standing on the north side of 59th street, 10 or 11 feet east of Peoria street, waiting for a westbound street car; that he did not hear the gong as the street car came along but that he could hear the usual noise that a street car makes; that “just probably twenty-five to thirty feet before he hit the corner it seemed as though he tried to slacken up the speed a little but then he seemed to pick up speed right away again ... I mean he tried to slack up the speed probably 20, 25 feet before he came up to where the car should stop and then when he got just a little way from where it should stop he picked up speed again”; that the street car was going just as fast when it passed him as it was when he saw it coming toward Mm; that when the street car came up to within 50 feet of him, it was going along at the usual speed and when it passed him it was going along at the usual speed; that he did not see the street car strike Russell, but he heard the sound of the brakes on the car when the front end of the street car was a little past the center of Peoria street; and that when he looked toward the west, Russell “was seven or eight feet from the crosswalk and still on his feet . . . He was spinning around at that time and he made a half circle in the street and slid down and fell all the way to the curbstone.”

John Polakowski testified that he was standing on the front platform of the street car just to the left of the motorman and that he was looking out the front' window of the car; that from the time the street car left Halsted street and approached Peoria it wels going 20 or 25 miles an hour; that when the street car was about half a block east of Peoria street the motorman “turned the lever, shut off the power ... he danged his bell and he put the power back on •. . . went right through ... he picked up the speed where he left off”; that when he turned the power off the street car just coasted; that the speed of the street car when it was coasting was 20 to 25 miles an hour; that the car was going 20 miles an hour and it slowed to 15 miles an hour; that the motorman clanged the gong when he was about half a block east of Peoria street; that he noticed three or four people waiting for a street car between the curb and the car tracks; that they were about three feet or so north of the westbound street car tracks and almost on the corner of Peoria street; that he noticed “the deceased fellow that got killed”; that “I seen him walking about, oh, he was two doors away from the corner ... he kept walking . . . south ... at a steady pace”; that “he looks toward our way when he was stepping off the curb”; that he then “crossed the street . . . on the west crosswalk . . . walking south”; that he did not see Russell “look in any other direction or turn his head in any other direction after that”; that after the street car started to cross Peoria street, it was going from 20 to 25 miles an hour; that the gong was rung on the street car before it came to Peoria street but not after; that he was watching Russell from the time he looked when he was at the curb until he was struck by the street car; that he saw “the man get hit”; that when the motorman first started to apply the brakes “the street car was almost on top of this fellow . . . about four or five feet”; that Russell was struck when he put his foot over the north rail; that “he tried to back out of the way”; that the “right hand side” of the street car struck him; that the man’s body was knocked over to the north curb and about 25 feet west of the corner; and that after the gong rung when the street car was 100 to 150 feet east of Peoria, it did not ring again up to the time the decedent was struck.

James Walsh testified that he was about 6 or 7 feet east of the east crosswalk of Peoria street, waiting for a westbound car; that he was standing about 3 feet north of the north rail; that he first saw the westbound street car which was involved in the accident when it was about Green street; that it was going pretty fast; that when he first saw him, Russell “was just crossing the street at 59th and Peoria, coming from the north on Peoria ... he was going south ... he was walking ... he looked around ... he looked east before he crossed the street”; that when he looked east Russell was “just at the curbstone”; that at that time the street car was “almost at the corner of Peoria”; that after the street car left Green street, “it started to pick up speed and was going pretty fast ... in about the middle of the block it slowed down a little”; that when the street car slowed down “it was quite a ways” east of Peoria street; that after the street car “slackened speed” it did not go very far; that “then it picked np speed . . . she started to go pretty fast again, didn’t slow down much”; and that he did not hear the gong sounded or the bell rung on the street car at any time.

Walsh testified on cross-examination that when he turned around and looked toward the west the street car “was just right at the corner . . . right at the corner of Peoria”; that when he “looked to the west” and saw Bussell “stepping off the curbstone,” the front end of the street car was “about five feet, six feet” from the corner; and that when Bussell was about half way between the north rail and the north curb of 59th street, the street car was a “little further east of the center.” He also testified that “there was an eastbound car coming.” ■

William Kenny testified that he was a passenger on the street car, that he was in the first seat on the right side of the car facing toward the west and saw decedent struck; that as the street car approached Peoria street, its maximum speed was about 25 miles an hour ; that at the time of the accident its speed was about 15 miles an hour; that as the street car approached Peoria street it “slowed down a bit ... I don’t know how much”; that when it slowed down it was about 100 or 150 feet east of Peoria street; that he saw the decedent about one second before the accident; that he did not hear “the ringing of the gong on the street car” before he saw the deceased; that he did not feel any slackening of the speed of the street car before he saw the deceased; that Bussell was about 6 feet away; that at that time “I just saw his head . . . I couldn’t see that he did anything; just looked at the street car”; that he was looking through the right front window, the one furthest north; that the first thing that directed his attention was when he saw the man’s head through the window of the car; that when he first saw the decedent, he was about 6 feet away and the street car was west of the center of Peoria street; that it was broad daylight; and that after the accident the decedent was lying in the gutter 20 or 30 feet west of Peoria street.

Defendants contend that the evidence does not fairly and reasonably tend to prove that plaintiff’s intestate was in the exercise of due care at and just before the happening of the accident; that the evidence does not fairly and reasonably tend to prove that defendants were guilty of any negligence which was a proximate cause of the accident; that the court erred in refusing to direct a verdict for defendants; and that the court erred in refusing to enter judgment for defendants notwithstanding the verdict.

Plaintiff’s position is that the questions of negligence, contributory negligence and damages were clearly questions of fact and were properly submitted to the jury.

Was Bussell guilty of contributory negligence as a matter of law? In considering and determining this question we must adopt the state of facts as disclosed by the evidence which is most favorable to plaintiff and, if there is any evidence in the record which reasonably tends to show that at the time of and immediately prior to the accident decedent was in the exercise of ordinary care and caution for his own safety, then the question of contributory negligence was one of fact for the jury. Just what are the facts bearing upon this question? Only two of the witnesses, Polakowski and Walsh, testified that they saw the decedent look toward the east in the direction of the approaching street car and they both stated that he looked only once. Polakowski said that the only time he saw Bussell look toward the east was “when he was stepping off the curb” and Walsh stated that the only time he saw Bussell look toward the east was “when he was just at the curbstone” on the north side of 59th street. Three witnesses, Runyan, Polakowski and Walsh testified as to where the street car was when Russell stepped from the north curb of 59th street onto the west crosswalk of Peoria street. Run-yan, who testified that he did not see Russell look east at any time, said that the deceased stepped from the curb onto the west crosswalk of Peoria street just about the time the front end of the street car was leaving the east side of Peoria street. Polakowski stated that when Russell stepped off the curb, the front end of the street car had already passed the two men who were waiting for the street car on the east side of Peoria street; that when decedent stepped off the curb the street car was out in Peoria street, going along at the usual speed; and that at the time Russell looked east, the street car was well over the “sidewalk line” on the east side of Peoria street. Walsh testified that when Russell was at the curbstone and looked east, “the street car was almost at the corner of Peoria,” and that he [Walsh] was standing 6 or 7 feet east of Peoria street and as the front end of the car passed him, he looked west and saw Russell stepping off the curbstone. One witness saw an eastbound car approaching, but he did not state how far west of Peoria street it was at the time. Some of the other witnesses stated that they saw an eastbound street car standing just west of Peoria street after the accident.

There was nothing to obstruct Russell’s view of the approaching westbound street car, either before or after he stepped from the north curb onto the street or thereafter until he was struck by the car. Thus we have this situation presented. When the decedent was at the curbstone, which was the only time or place that any witness said that he looked toward the oncoming street car, it was just entering or was about to enter Peoria street and was traveling at the rate of 20 to 25 miles an hour, which was the usual speed of street cars on that street. It was making the usual noise. Bussell was then 10 or 12 feet from the first rail of the westbound track and perfectly safe. As will be hereafter shown he had no reason to believe that the street car would be stopped or, could be stopped before it reached the west crosswalk of Peoria street, which street was about 30 feet wide. Yet, he did not stop but continued walking toward the track without looking again. When he was 3 or 4 feet from the track he was still perfectly safe. He was then at a point beyond which an ordinarily prudent man would not have gone until the street car had passed. It was so close to him and coming at such speed that it struck him as he put his foot on the north rail. Beasonable minds must agree that, under the facts and circumstances in evidence, he did not have a chance of crossing in front of the street car in safety. An adult person of ordinary prudence is or should be capable of judging whether there is a threat of danger from an approaching street car. While a street car track may not be a dangerous place per se there can be no doubt but that a street car track upon which a street car is rapidly approaching and so near at the time as to strike a person as soon as he steps upon the first rail, is at such time a dangerous place. It has long been the rule in this State that it is the duty of persons about to cross a dangerous place to approach it with care commensurate with the known danger, and when one on a public highway fails to use ordinary precaution while proceeding over a dangerous place, such conduct is by the general knowledge and experience of mankind condemned as negligence. Dee v. City of Peru, 343 Ill. 36. In Myhre v. Chicago City Ry. Co., 216 Ill. App. 128, the court said at p. 131: “The purpose of looking, as an act of caution, is to determine what one shall safely do next; ordinarily this will be to move or to stand still; hence the looking must be done when and where one can act safely with reference to any danger observed, otherwise the act of looking is minus the element of caution.”

Due care of plaintiff’s intestate is a separate and distinct question from any claim of negligence on the part of defendants. (Carson Pirie Scott & Co. v. Chicago, Rys. Co., 309 Ill. 346; Bushman v. Calumet & South Chicago Ry. Co., 214 Ill. App. 435.) While Bussell and defendants had equal rights at this intersection, still it was impossible for Bussell and the street car to cross at the same place at the same time without colliding. (Hedmark v. Chicago Rys. Co., 192 Ill. 584.) A reasonably prudent man in the same circumstances as disclosed by plaintiff’s witnesses would in deference to his own personal safety forego his technical right to cross the street until it was reasonably safe to do so. A man on foot may stop almost instantly upon the appearance of danger while it requires some distance to stop a heavy street car and a reasonably cautious man should take this into consideration in the exercise of due care for his own safety. In discussing the question of reasonable care in Lee v. Chicago City Ry. Co., 127 Ill. App. 510, the court used this language at pp. 512 and 513:

“It is true, as his attorney argues, that both appellant’s team and the car had equal rights at this street intersection. Appellant was on the crossing first; but when by keeping his eyes open and his wits about him he could have gotten out of the way and escaped the danger with perfect ease and without trouble or risk, ordinary care for his own safety should have led him to make some effort to do so. . . . Some watchfulness, some alertness, some reasonable degree of care for his own safety are requisite, and as to this ‘there is no reasonable chance of different reasonable minds reaching different conclusions.’ I. C. R. R. Co. v. Anderson, 184 Ill. 294. In such circumstances negligence is a question of law for the court. Appellant was an adult of experience, accustomed to drive over city streets and must ‘be presumed to have the capacity of making some effort to remove himself out of the way of the threatened peril.’ C. W. D. Ry. Co. v. Ryan, 131 Ill. 474-479. He must be presumed also to have capacity of making some effort when he is in a place where danger from a car is liable to occur, to keep himself advised of its approach, especially when he has just seen a car coming upon the tracks he is about to cross.”

Plaintiff insists that “it is a question of fact for the jury whether a pedestrian was in the exercise of ordinary care for his safety when crossing a street car track at a street intersection and upon the designated crosswalk where such person observes the street car approaching at a considerable distance, which slows down for the apparent purpose of receiving passengers who were standing at the proper place in the street intersection to board the street car and where such street car after having slackened its speed suddenly increases speed and proceeds across the intersection at the rate of 25 miles per hour, without ringing the gong or giving other warning and strikes the pedestrian. ’ ’

The difficulty with plaintiff’s position in this regard is that there is no evidence in the record to support it. As already shown only two of the witnesses said that they saw Russell look east toward the westbound car. Both of these witnesses testified that the only time they saw him look east was when he was at the north curb and that at that time the street car either had just entered or was about to enter Peoria street, traveling at a speed of from 20 to 25 miles an hour. So that whether the speed of the street car was slackened half a block east of Peoria street, as two of the witnesses testified, 100 or 150 feet east of Peoria street, as one of the witnesses testified, or 25 or 30 feet east of Peoria street as still another witness testified, said slackening occurred before Russell looked toward the street car. It is true that two passengers were waiting for a westbound car at the usual stopping place east of Peoria street, but there is no evidence in the record from which it could be reasonably inferred that decedent saw the street car slacken its speed in such a manner as to indicate that the motorman intended to stop the car to pick up the two men who were waiting to board it.

The following statement is found in plaintiff’s brief:

“The decedent was seen to walk in a southerly direction on the west side of Peoria Street to 59th Street, when the street car was approaching Peoria Street. As the decedent stepped down from the curbstone, into 59th Street, he was observed to walk in a southerly direction toward the street car track as the street car was slackening its speed, preparatory to stopping for the passengers.” In'support of this statement reference is made to evidence on pages 13, 19 and 27 of the abstract. On page 13 of the abstract is found the following testimony of Farrell as to when the slackening of the speed of the street car occurred: “The car was coming toward me at a fairly good rate of speed and just probably 25 to 30 feet before he hit the corner it seemed as though he did try to slacken up the speed a little but then he seemed to pick up speed right away again. I mean he tried to slack up the speed probably 20, 25 feet before he came up to the point where we were standing and then when he got just a little way from where it should stop he picked up speed again. I intended to take that street car. The street car was going just as fast when it passed me as it was when I saw it coming toward me. As he crossed over Peoria street he was going a good rate of speed. I did not see Russell, the fellow that got killed, before, the accident.” The only evidence concerning the slackening of the speed of the street car found on page 19 of the abstract is the testimony of Polakowski that such slackening occurred half a block east of Peoria street. As to the testimony of Walsh on page 29 of the abstract concerning the slackening of the speed of the street car, we quote from pages 137 and 138 of the record: “Q. WTiat did the street car do after it left Green Street? A. Well, it started to pick up speed and was going pretty fast. In about the middle of the block it slowed down a little. Q. Where was the street car when it slowed down now with reference to . . . east of Peoria Street? A. Well, I should say about — • well, I just couldn’t say how far it was from the corner. It was quite a ways. Q. How far did it go that way after it slackened speed? A. Not very far. Q. Then what did it do ? A. Then it picked up speed. Q. When it was going across Peoria Street how fast was it going? A. Well, she started to go pretty fast again, didn’t slow down much. . . . Q. Did you see the man when he got struck? A. I did. Q. Now, you saw him leave the curbstone, did you? A. Yes. Q. Tell us what you saw after that; he looked east you say and then what happened? A. Well, he looked east and the street car slowed up when he looked east and the next thing I knew when he went to cross the street the street car hit him. He tried to jump back.”

The testimony of Farrell and Polakowski last above referred to lends no support to plaintiff’s statement that Russell “was observed to walk in a southerly direction toward the street car track as the street car was slackening its speed preparatory to stopping for the passengers.” Farrell fixes the point at which the street car slackened its speed at 25 to 30 feet from the corner or 20 or 25 feet east of where he was standing. He said the car “picked up” speed again “a little way” east of where he was standing, which was 10 or 11 feet east of Peoria street. It will be remembered that the street car was entering or about to enter Peoria street at a speed of from 20 to 25 miles an hour the only time Russell looked east, and that was when he stepped from the cnrb. Polakowski places the street car half a block east of Peoria street when it slackened its speed. The only testimony of Walsh that could possibly be said to lend any support to the foregoing statement of plaintiff is his answer that Russell “looked east and the street car slowed up when he looked east and the next thing I knew when he went to cross the street the street car hit him.” This answer made by Walsh must be considered in the light of his previous testimony that the street car slackened its speed half a block east of Peoria street and also in the light of the following questions and answers that immediately preceded such answer: “Q. Did you see the man when he got struck? A. I did. Q. Now, you saw him leave the curbstone, did you? A. Yes. Q. Tell us what you saw after that; he looked east you say and then what happened?” It was in response to this last question that the answer under consideration was made. This question concerned what the witness saw and what occurred after Russell had stepped from the curb. The front end of the street car had then already passed the men waiting for the car and had entered or was just about to enter the east side of Peoria street. The answer could not have been intended by the witness to have any application to the slackening of the speed' of the street car before it had passed the men waiting for the car. In our opinion no inference favorable to plaintiff’s theory may be drawn from this answer. There are no facts or circumstances in evidence that show that decedent saw any slackening of the speed of the street car before it passed the men waiting at the east side of Peoria street.

In the absence of proof of the special circumstances relied upon by plaintiff to excuse decedent’s conduct, it was a want of due care as a matter of law for .him, when he knew that a street car was approaching, to walk in front of such car when it was close enough to strike him before he was able to walk across the first rail of the track. (Emerson v. Richardson, 296 Ill. App. 643; Devine v. Chicago City Ry. Co., 203 Ill. App. 410; Nelson v. Evanston Ry. Co., 261 Ill. App. 4.) We are impelled to hold that the deceased was guilty of contributory negligence as a matter of. law and that defendants’ motion for a directed verdict should have been allowed. In the view we take of this case it is unnecessary to discuss the question as to whether defendants were guilty of the negligence charged. Since there are no facts in evidence in this cause which tend to show any excuse for plaintiff’s want of care, it would serve no useful purpose to discuss the many cases cited dealing with special circumstances which were relied upon in those cases to excuse plaintiff’s lack of care.

For the reasons stated herein the judgment of the circuit court is reversed and judgment is entered here notwithstanding the verdict in favor of defendants and against plaintiff.

Judgment reversed and judgment here in favor of defendants and against plaintiff notwithstanding the verdict.

Friend, P. J., and Scanlan, J., concur.


text:
    Helen M. McMahon, Appellee, v. The Continental Assurance Company, Appellant.
    Gen. No. 41,342.

      Opinion filed December 30, 1940.
    George C. Bliss, of Chicago, for appellant.
    Peden, Melaniphy, Ryan & Andreas, of Chicago, for appellee; John C. Melaniphy, Gerald Byan and Joseph V. Murphy, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Helen McMahon, as the beneficiary under a policy of life insurance issued by defendant, Continental Assurance Company, to James Edward McMahon. Plaintiff filed a motion to strike certain portions of defendant’s amended answer, which set forth an affirmative defense. This motion was sustained, and defendant electing to stand upon its answer judgment was entered in favor of plaintiff for $5,111.15. This appeal followed.

Plaintiff’s complaint alleged in substance that on February .19, 1936, defendant issued an insurance policy for $5,000 on the life of her husband, James Edward McMahon, the proceeds of such policy being payable to her as beneficiary upon the death of the insured; and that the insured having died on August 22, 1939, she was entitled to recover the $5,000 insurance and interest thereon from the date of the death of her husband.

Attached to and made part of the complaint is a copy of the insurance policy, which contains the following, among other provisions:

“Grace — A grace of thirty-one days will be allowed in payment of any premium after the first, and during this time the insurance shall continue in force. . . .
“Reinstatement — If this policy shall lapse by reason of default in premium payment it may be reinstated at any time within its term upon written application by the insured to the Company at its Home Office accompanied by evidence of insurability satisfactory to the Company and the payment of all past due premium with interest at the rate of five and one-half per cent per annum, and the payment or renewal of any indebtedness to the Company hereon, with interest. . . .
“This policy and the application therefor . . . which is hereby made a part of this contract and a copy of which is hereto attached, constitute the entire contract between the parties hereto, and it shall be incontestable after two years from its date of execution, except for nonpayment of premium. . . . Except as herein provided, the payment of a premium shall not maintain this policy in force beyond the date when the next premium is due.”

Defendant’s amended answer admitted all the allegations of the complaint except the allegation that plaintiff is entitled to payment of the policy according to its terms.

The answer then alleged as an affirmative defense that “on April 1, 1939, the annual premium of $59.60 was not paid to the defendant, nor was said annual premium or any portion thereof paid or tendered to the defendant within the period of grace thereafter as provided for in said contract of insurance”; that “by reason of the failure of the insured to pay said premium as provided for in said policy of insurance the said policy lapsed as of April 1, 1939”; that “on May 3, 1939, the insured, James Edward McMahon, signed an application for reinstatement of the said policy of insurance and did also sign a request for change of premium payment from an annual payment of $59.60 to a monthly payment of $5.35, said change in premium payment to take effect as of April 1, 1939”; and that “said application for reinstatement signed by the insured, James E. McMahon, is in words and figures as follows:

“Continental Assurance Company
“I hereby apply for reinstatement of my Policy No. 230733 which became forfeited and void because of nonpayment of premium that was due April 1, 1939.
“I agree, as a part of this application, that my representations and answers in my application for the above mentioned policy, shall be considered as a part of this application for reinstatement, and I now reaffirm them. I further state and represent that the answers to the following questions are complete and true.” These questions and answers contained in the application for reinstatement are pertinent to this proceeding: “1. (a) Are you in good health? Yes. . . . 5. What diseases, ailments, or injuries have you had since examined for the above mentioned policy? None. 6. What physicians, practitioners, or surgeons have you consulted since examined for the above mentioned policy? (Why?) No.”

The answer further alleged that “defendant, relying upon the answers made by the insured in said application for reinstatement, did, on or about May 15, 1939, reinstate said policy of insurance”; that “in said application for reinstatement of said policy of insurance the insured answered ‘none’ to the following question: (5) What diseases, ailments, or injuries have you had since examination for the above mentioned policy?; that in said application for reinstatement of said policy the insured, James E. McMahon, answered ‘no” to the following question: (6) What physicians, practitioners, or surgeons have you consulted since examined for the above mentioned policy? (Why?)”; that “subsequent to the death of the insured, James E. McMahon, on August 22, 1939, this defendant discovered that the foregoing answers to said questions in the application for reinstatement were false and untrue, in that the insured, James E. McMahon, consulted and was examined by the following physicians between January 1, 1937, and April 1, 1939: Dr. A. N. Even, Dr. Sydney Walker, Jr., and Dr. Harry L. Huber, for diseases, ailments and injuries; that on or about January 4, 1937, the insured consulted and was examined by Dr. A. N. Even for an alleged injury to his eye; that Dr. Even found a retinal detachment and advised the insured to see his family physician for blood-count, urinalysis and blood pressure; that on to-wit: July 27, 1937, the insured consulted and was examined by Dr. Snyder Walker, Jr., who found that the insured had. a hemorrhagic retinitis of the right eye, which in the opinion of Dr. Walker was not in any way related to an alleged injury to the eye and that the condition of the eye was secondary to some systemic disturbance resulting in an embolism or thrombosis of the central retinal artery; that the said James E. McMahon was advised by Dr. Sydney Walker, an eye specialist, that the condition of his eye was not in any way due to the injury he had to the cornea of the eye a few months previous and suggested to the insured that he consult a physician for the purpose of having a complete checkup; that the said insured advised Dr. Sydney Walker that he had been to see a physician; that the insured, James E. McMahon, consulted and was examined by Dr. Harry L. Huber . . . May 11, 1937, who found that insured had a blood pressure of 180/110; that insured complained of a blurring of the vision of the right eye and gave a history of his father having died at the age of seventy-one of hypertension; that on . . . May 11, 1937, the insured did have a urinalysis made.”

The answer then averred that “by reason of the injury and ailments that insured was examined for by physicians, together with the consultations with physicians by insured above referred to, the answers in said application for reinstatement to question 5 and 6, as aforesaid, were false, untrue and were made by insured with intent to deceive the defendant, or were material to the acceptance of the risk or hazard assumed by this defendant in reinstating the said policy of insurance; that this defendant would not have reinstated said policy of insurance had the said questions 5 and 6 above referred to, or either of them, been truthfully and completely answered; that insured died on August 22, 1939, as a result of a cerebral hemorrhage. ’ ’

As heretofore shown plaintiff’s motion to strike that portion of defendant’s-answer which set forth its affirmative defense was allowed. By her motion to strike plaintiff admitted the allegations of fact, which constituted said affirmative defense.

The policy of insurance had become incontestable under its terms because it had been in force for a period of more than two years before it lapsed on April 1, 1939, by reason of the failure of the insured to pay the premium on that date. Thereafter the policy was reinstated on or about May 15, 1939, by payment of the premium indebtedness by the insured and by the acceptance by the insurer of the application for reinstatement signed by the insured on May 3, 1939, evidencing his insurability as of that date. The only contract of insurance between the insured and defendant consists of the original application for the policy and the policy itself, and it is conceded that the application for reinstatement and the acceptance of same did not constitute a new contract of insurance. However, although the application for reinstatement and the acceptance of same formed no part of the policy of insurance, the provision of said policy heretofore set forth relating to its reinstatement in case of lapse for nonpayment of premium, as well as the statute (sec. 224 [i], par. 836, ch. 73, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 66.899]) pursuant to which said provision was incorporated in the policy, contemplate, in the event of the lapse of a policy for nonpayment of premium, a contract between the insurer and the insured for the reinstatement of the policy, whereby the lapsed policy is revived and restored to its former condition. So it is that defendant is not contesting or attacking the original contract of insurance but the contract for the reinstatement of the policy. It is insisted that, since the insured through the fraudulent representations in his application for reinstatement, heretofore set forth, induced the insurer to accept as true his answers to the questions contained therein as to his insurability, this admitted fraud as to his insurability rendered his reinstatement void and of no effect and left his policy in the same lapsed condition that it was on April 1, 1939.

The principal question presented for determination is whether defendant has the right by way of defense to contest the reinstatement of the policy because of the fraudulent misrepresentations of the insured in his application for reinstatement, which induced defendant to revive or restore the policy.

The rule that a false representation of fact in an application for a policy of insurance which materially affects either the acceptance of the risk or the hazard assumed, when made intentionally and knowingly, avoids a contract of insurance has repeatedly been enunciated by both the Supreme and Appellate Courts . of this State. (Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496; Joseph v. New York Life Ins. Co., 219 Ill. App. 452; Thompson v. State Mut. Life Assur. Co., 305 Ill. App. 255.)

Where a policy of insurance has been reinstated and the insurer asserts that the reinstatement is invalid because obtained by false representations in the application for such reinstatement, which materially affected the risk or the hazard assumed or were made with intent to deceive as to the insurability of the assured, the foregoing rule is, in our opinion, equally applicable. (Hartley v. Metropolitan Life Ins. Co., 286 Ill. App. 605 (Abst.); Johnson v. Country Life Ins. Co., 284 Ill. App. 603; New York Life Ins. Co. v. Feicht, 29 F. (2d) 318; Alper v. New York Life Ins. Co., 41 F. (2d) 956.)

In support of plaintiff’s position that, regardless of the false representations made by the insured in his application for reinstatement and regardless of whether such representations were material to the risk and the hazard assumed and made with intent to deceive, she is entitled to recover the proceeds of the policy because it had become irrevocable prior to its lapse on April 1,1939, and the forfeiture for the failure to pay the premium due on that date had been waived by the reinstatement of said policy, she relies upon Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488; Froehler v. North American Life Ins. Co. of Chicago, 374 Ill. 17; Murphy v. Old Colony Life Ins. Co., 219 Ill. App. 649 (Abst.); Fendi v. Metropolitan Life Ins. Co., 294 Ill. App. 606 (Abst.).

Plaintiff has misconstrued the effect of the decision in the Monahan case. There the insurer was attempting to contest the policy because of alleged misrepresentations in the application for the policy itself. There was a provision in the policy in that case making it incontestable after it had remained in force continuously for two years from its date. The insurer contended that the policy did not remain in force continuously for two years before it was contested for the reason that during that period the policy lapsed for nonpayment of premium and was thereafter reinstated. In that case the court quoted from Lindsey v. Western Mut. Aid Society, 84 Iowa 734, as follows: “The reinstatement was not the making of a new contract for no new or different terms were agreed upon. It was simply a cancellation of the forfeiture, whereby Mrs. Wilson was restored to membership under the contract already existing. No new or different certificate was issued, but defendant continued to recognize the certificate sued upon as the valid and existing contract with the insured.” It was then held in the Monahan case that the policy was in force continuously for two years from the date of its issuance and that “this conclusion renders the policy incontestable.” No point was made by the insurer therein with reference to any alleged false representations in the application for reinstatement of the policy. Obviously where no false representations were made in the application for reinstatement, the acceptance of the application and of the premium by the insurer revived or restored the lapsed policy. The question was not involved in that case of the right of the insurer to contest the application for reinstatement of the policy for false and fraudulent misrepresentations in the application for reinstatement. There the reinstatement of the policy was properly effected and not brought about by fraudulent representations on the part of the insured as alleged in this case.

The case of Froehler v. North American Life Ins. Co. of Chicago, 374 Ill. 17, is clearly distinguishable. In her brief plaintiff quotes from p. 23 of the Froehler case as follows:

“In the case which we are now considering the insured had a contractual right to be reinstated and this provision of his policy was as valid and binding as any other provision therein. Under such a policy as this one the lapse for nonpayment of premiums does not make necessary the formation of a new contract, but the reinstatement, when effected, merely cancels the forfeiture, leaving the original contract in full force. (Monahan v. Fidelity Mutual Life Ins. Co., 242 Ill. 488; 4 Cooley on Insurance, (2d. ed.) p. 3800.) The truth or falsity of the statements as to health are to be determined as of the date the certificate is made. (Insurance Co. v. Higginbotham, 95 U. S. 380.) A recital in the certificate for reinstatement that the insured is in good health cannot be construed to mean that he has had no temporary or trivial indisposition. 4 Cooley on Insurance (2d ed.) p. 3794.”

In that case in the application for reinstatement of a lapsed policy, the insured answered in the affirmative a question as to whether or not he was then in good health. In its opinion the court points out that a person might be seriously ill from many causes and not know it for a long time; and that the evidence in the case tended to show that at the time the insured signed the application for reinstatement he' had no information nor any reason to suspect the serious nature of his malady. The issue therein was whether the insured acted in good faith when he stated in his application for reinstatement that he was in good health. No issue was involved in that case as to false representations in the application for reinstatement except the question as to whether the insured had in good faith answered the question with reference to the condition of his health at the time he signed the application. The Froehler case distinguished the Western & Southern Life Ins. Co. v. Tomasun, supra, because that case involved intentional fraud. The instant case involves intentional fraud in the application for reinstatement. The language used by the Supreme Court in the Froehler case is in harmony with the conclusion reached in the Monahan case to the effect that where a reinstatement is properly effected, the forfeiture for nonpayment of premium is canceled and the policy revived or restored, leaving the original contract of insurance in full force and effect. The Froehler case does not hold that, if the insured was not in good health at the time he signed the application for reinstatement and knew that he was not in good health and fraudulently stated in his application that he was in good health, nevertheless he would be entitled to recover. It is further held in the Froehler case that the insured furnished all the evidence as to his insurability that he had been asked to furnish and that that evidence was satisfactory; that the jury found that it was honestly given and that the question involved was for the jury to pass upon; that the insured honestly and in good faith complied with the terms of his contract by furnishing all the evidence of insurability required by the company. Here it is admitted by plaintiff’s motion to strike that the insured did not honestly or in good faith comply with the terms of the contract of reinstatement in furnishing evidence of insurability required by defendant.

Plaintiff quotes the following portion of the opinion in Murphy v. Old Colony Life Ins. Co., 219 Ill. App. 649 (Abst.):

“The rule followed in Monahan v. Fidelity Life Ins. Co., 242 Ill. 488, is that a reinstatement is merely a cancellation of the forfeiture and that the original policy continues in full force without interruption. In that case while the death of the insured was less than two years after the reinstatement of the policy it was more than two years after its issuance, and the policy was accordingly held incontestable. Reviewing conflicting authorities on the subject the court declined to follow the rule announced in the Teeter and other cases relied on by appellant, and adopted the rule of other cases referred to therein to the effect that the contract to which the limitation is applicable is that of the original application and policy, and not the reinstated one. This is in consonance with the statute which makes the policy and application therefor the entire contract between the parties. While fraud was not the defense in the Monahan case, what was said of the contract and contestability is applicable to the facts here and justified the court below in striking the affidavit on the ground that misrepresentation in the application for reinstatement is no part of the contract between the parties which by the terms of the statute as well as the policy is made ‘incontestable after two years from its date/ except for specified grounds not involved here and that do not include fraud. We need not, therefore, discuss authorities of other jurisdictions.
“Furthermore, as the statute puts no restrictions upon the company’s-determination of what it shall deem statutory evidence of insurability at the time of reinstatement, the company would hardly seem to be in a position to question the waiver of forfeiture so long as it chose to accept as satisfactory the mere statement of the insured with regard to his health without taking other precautions such as are usually observed with regard to insurability before issuing a policy. However, it is unnecessary to decide this question if the insurer is precluded from making any defense after the lapse of two years from issuance of the policy other than those defenses named in the statute, viz., nonpayment of premiums and violation of the conditions of the policy relating to military or naval service in time of war.”

It will be noted that in the Murphy case the court, relying entirely upon the rule laid down in Monahan v. Fidelity Mut. Life Ins. Co., supra, held that there was no new contract of insurance entered into by reason of the reinstatement of the policy after its lapse. Although the question was presented in the Murphy case, the court did not decide therein the point made in the instant case that it is not the policy of insurance that is attacked, but that the defendant has a right after the limitation period for contesting the policy has expired, to contest for fraud the contract or agreement for reinstating the policy.

Fendi v. Metropolitan Life Ins. Co., supra, apparently approving Murphy v. Old Colony Life Ins. Co., supra, quoted the decision in that case practically in its entirety. The court did, however, hold in the Fendi case that the question of misrepresentations in an application for reinstatement was a question of fact for the jury.

Of the foregoing decisions neither the Monahan case ■nor the Froehler case are at all applicable to the question under consideration. As has been seen the conclusion reached in the Murphy case was based upon a misconstruction of the effect of the decision in the Monahan case and the Fendi case merely followed the Murphy case insofar as the question under discussion is concerned. Therefore, neither of these two latter decisions can be held to be helpful in the determination of the question before us.

In Alper v. New York Life Ins. Co., 41 F. (2d) 956, where the situation presented was practically identical with that presented here, it was squarely and definitely held that an insurer had the right to attack the reinstatement of a policy of insurance which had lapsed for nonpayment of premium, where such reinstatement had been procured by the false and fraudulent misrepresentations of the insured in his application for such reinstatement. In that case the court said at pp. 957 and 958:

‘1 The plaintiff contends that, by its plea, the defendant is contesting the policy of insurance; that by virtue of the reinstatement of Alper a new contract of insurance was not effected, but the reinstatement merely operated to restore the existing policy in full force and vigor and in the same condition as it was immediately before default, particularly including the provision that the policy was to be incontestable two years from its date. If this position is sound, then the special plea is bad. On the other hand, defendant urges that the reinstatement was simply a contract to restore or revive the contract of insurance, and, like any other contract, may be attacked for fraud. If this position is sound, then the special plea is good.
‘ ‘ The plea proceeds upon the theory that the policy is good and valid. It makes no assault upon the policy. The plea contests the reinstatement. It challenges the validity of the reinstatement by reason of misrepresentation and fraud practiced on the company by Alper in his application for reinstatement.
“Alper failed to pay his premium at the stipulated time or within the grace period provided by the policy. His policy lapsed. The contract was at an end. Liability under it had wholly ceased. The policy could be revived only by consent of the defendant. By virtue of the terms of the original policy, a new written application was required, together with ‘evidence of insurability satisfactory to the company,’ before reinstatement could be made. A new contract was possible only as a result of new negotiations. International Life Ins. Co. v. Mowbray, (C. C. A.) 22 F. (2d) 952, 954.
“New negotiations were instituted. Alper’s application for reinstatement constituted the offer. The action of the company in making the reinstatement was the acceptance. Alper paid interest on the overdue premium which is the consideration. The transaction, therefore, has all the elements of a contract — offer, acceptance, and consideration.
“The new contract effected, as disclosed by this record, was a contract for the continuance in force of the policy originally issued. It was a contract for the revival or reinstatement of a precedent contract. Wastun v. Lincoln National Life Insurance Co. (C. C. A.) 12 F. (2d) 422, 425; Keller v. North American Life Insurance Co., 301 Ill. 198, 211, 133 N. E. 726; New York Life Insurance Co. v. Rosen, 227 App. Div. 79, 236 N. Y. S. 659; New York Life Insurance Co. v. Buchberg, 249 Mich. 317, 228 N. W. 770, 771; International Life Insurance Co. v. Mowbray (C. C. A.) 22 F. (2d) 952, 954; New York Life Insurance Co. v. Feicht (D. C.) 29 F. (2d) 318.
“In the case of New York Life Insurance Co. v. Buchberg, supra, the court say: ‘The reinstatement of a policy is not a new contract of insurance, nor is it the issuance of a policy of insurance; but rather it is a contract by virtue of which the policy already issued, under the conditions prescribed therein, is revived or restored after its lapse.’
“In essence, plaintiff must maintain two contracts. One is the contract of reinstatement. The other is the original policy as restored by the contract of reinstatement. The plea attacks the contract of reinstatement on the ground of fraud practiced by Alper. The incontestable clause is a part of the restored contract. It is no part of the contract for the restoration of the policy. The new contract for the reinstatement of the policy is subject to be attacked for fraud. New York Life Insurance Co. v. Feicht, supra.To the same effect are (Hartley v. Metropolitan Life Ins. Co., supra; Johnson v. Country Life Ins. Co., supra; and New York Life Ins. Co. v. Feicht, supra.)

We think the foregoing cases are clearly applicable and sustain defendant’s theory as alleged in its answer that, inasmuch as the insurer was induced to reinstate the policy of insurance as a result of the fraud of the insured, the policy was never in fact or law reinstated and that it necessarily follows that the situation is the same as if no contract for reinstatement was ever entered into and the policy, having lapsed for nonpayment of the premium due on April 1, 1939, was not in force and effect when the insured died on August 22, 1939.

It is stated repeatedly in plaintiff’s brief that because defendant did not in its answer challenge the insured’s statement in his application for reinstatement that he was in good health, it thereby admitted that the insured was in good health at the time the application for reinstatement was signed. In view of this alleged admission plaintiff asserts that the alleged ailments of insured and his consultations with physicians subsequent to the issuance of the policy and prior to his signing of the application for reinstatement were of a trivial and transitory nature and therefore not material as a matter of law. Plaintiff’s position in this regard is not sound. We think the language used in Perkins v. Prudential Ins. Co. of America, 69 F. (2d) 218, is appropriate and a sufficient answer to plaintiff’s contention in this regard. There the insured stated in his application for reinstatement not only that he was in good health but that since the date of the issuance of the policy he had had no illness or injury and had not received any medical treatment at his home or at a hospital. After his death it was disclosed that he had had a metabolism test at a hospital, which showed that he had a toxic goitre. It appeared that he was not informed as to the significance of his condition. It was contended there, as it is here, that the insured could riot have been guilty of fraud since he was not bound to disclose minor ailments, which he considered would have no bearing on the risk. In that case the court used this language at pp. 220 and 221:

“The application asks certain specific questions as to whether or not the insured is in good health, whether he has had any illness or injury since the policy was issued, and whether he has had any medical or surgical treatment. It does not qualify these questions with reference to the seriousness of conditions for which the insured may have been under medical or surgical care. . . . The first question referred to here might well be considered as calling for an answer as to insured’s own idea of his state of health, but the second and third are in a different category. The insurer has a right to know whether the insured has had occasion to consult a physician for any reason whatsoever, and to find out for itself whether or not the risk has been impaired since it first issued the policy. . . . The policy provided that reinstatement after lapse was to be on condition that the insured furnish evidence of insurability satisfactory to the insurer. The insurer had a right to question any physicians consulted by the insured since the policy was issued in order to determine for itself whether it still wished to carry the risk.”

Plaintiff’s contention that “the answer to question No. 6 was not responsive and was therefore, waived by the reinstatement of the policy,” is without merit. The insured answer “No” to the question “What physicians, practitioners or surgeons have you consulted since examined for the above mentioned policy? (Why?).” His answer reasonably construed could only have been intended to mean that he had not consulted any physician or surgeon since he was examined prior to the issuance of his policy.

We are impelled to hold that defendant’s answer alleged a good and sufficient defense and that the trial court erred in sustaining plaintiff’s motion to strike that portion of said, answer which asserted the affirmative defense of the insurance company.

For the reasons stated herein the judgment of the superior court is reversed and the cause is remanded with directions that the order sustaining plaintiff’s motion to strike that portion of defendant’s answer which asserted its affirmative defense be vacated; that plaintiff be required to reply to defendant’s answer and that such other proceedings be had as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.