Enright v. National Council Knights & Ladies of Security , 1911 Ill. App. LEXIS 746 ( 1911 )

Mb. Justice Clark

delivered the opinion of the court.

We are asked to reverse this case because, as it is claimed by the appellant, untruthful answers were made in the application. No answer appeared to the question, “Brother dead?”, but it is urged by the appellant that we should treat this fact as though the answer were “No.” We cannot agree with this contention. We think there is no more reason for inserting this word than the word “Yes.” Globe Mutual Life Insurance Co. v. Meyer, 118 Ill. App. 155.

It is claimed by the appellant that answers to all of the questions in the application constituted a warranty on the part of the assured. The certificate in this case was similar to that in the case of Minnesota Mutual Life Insurance Co. v. Link, 230 Ill. 273. On the authority of the case last cited, we hold that the statements in the case before us were representations and not warranties.

It will be noted that the parents of the deceased were living at the time of the issuance of the policy, one being fifty-five and the other fifty-eight years of age, and there appears in the record no testimony tending to disclose that they were not in good health. The representation of the member was that neither his parents nor other blood relatives had been afflicted with consumption, scrofula, cancer, insanity, epilepsy, gout, rheumatism or any other hereditary disease. The evidence disclosed that a brother had died of acute miliary tuberculosis, but it further appeared that the duration of this disease was four months and fifteen days, and that there was another contributing cause of his death. The short duration of his illness would, it seems to us, indicate that the disease of consumption was not hereditary in him, especially in view of the fact that both of the parents were living and upwards of fifty-five years of age, but rather that the disease was acquired from causes against exposure to which we are so constantly warned by health authorities. A first cousin also was shown to have died from pulmonary tuberculosis and pneumonia, but her illness also was of but four months’ duration; and this does not indicate to us that the disease was hereditary, and that therefore the answer to the question was false. Such being our view of the matter, there is no occasion to discuss the testimony with reference to the manner in which the statement was prepared by the doctor who made the examination, and signed by the member, except to say that it apparently was hurriedly prepared, and it was not claimed by the doctor that he read it to Enright before the latter affixed his signature, or that Enright read it.

Complaint is made of the closing argument to the jury by appellee’s attorney. We have carefully read the abstract, and it does not disclose that any objection was made that was not sustained by the court, except as shown by the following:

“Mb. Abing: There is the contract, three thousand dollars in big numbers. Down at the bottom here seventy per cent., in very fine print, where you have got to put your specs on to see it, some of you old gentlemen may, it is right here. I don’t see a word about it—

“Me. Fulton: I object to that, to these remarks, and would like to have a ruling on it, the size of the print—

“The Coubt: I do not see any objection to commenting on the size of the print.

“Mb. Fulton: Tes, he is drawing the inference here that it is purposely put in fine print while the other is in large print. That has been held to be improper.

“The Coubt: I don’t see why a man can’t comment on the size of the print as well as on the size of the paper.

“Mb. Fulton: It is the inference he is drawing that I take exception to.

“The Coubt: I am not ruling on the inference. I am ruling on what he said.

“Me. Fulton: We except to the ruling of the court.”

We see no reason for reversing the judgment because of this occurrence. Even if the remark was improper, which we do not hold, it was not of such a character, in our opinion, that it contributed materially, if at all, to the result reached by the jury. In the case of the People v. McCann, 247 Ill. 130, the Supreme Court held, as it had in substance in many previous cases, that although improper remarks and improper conduct of attorneys in their argument to the jury are to be condemned in every case, they will not be held to be ground for reversal except where the evidence is such that the court is of the opinion they contributed to produce the verdict.

Affirmed.