186 A. 144 | Pa. | 1936
Argued April 14, 1936. The suit is to recover upon a policy of insurance issued by the defendant company on the life of plaintiff's wife. Liability in an amount greater than the premiums paid with interest is denied by defendant on the ground that certain answers of insured in her application for the insurance were false and fraudulent. The jury found in plaintiff's favor, and defendant's motion for judgment notwithstanding the verdict was denied by the court of common pleas, whose judgment was affirmed by the Superior Court. We thereupon allowed the present appeal.
Insured died July 26, 1933. The application had been executed and the policy issued on November 5, 1931. Defendant relies on answers in the application with regard to insured's prior health and attendance by physicians. The application stated that her present condition of health was good, that she had no physical or mental defect or infirmity, and that her last sickness was on July 7, 1931, when she was confined to a hospital for ten days for the removal of a hemorrhoid. Particular reliance is placed on the following question and answer: "18. Have you been attended by a physician during the last five *566 years? If yes, give name of complaints, dates, how long sick, and names of physicians. Hemroid removed, July 7/31, Dr. J. L. Atlee, 10 days." To show that these statements were falsely and fraudulently made, defendant invokes certain alleged admissions in the pleadings and the testimony of a single witness, the insured's family physician.
A consideration of defendant's evidence in the light of the principles stated by us in Evans v. Penn Mut. Life Ins. Co.,
Likewise, the admissions in the pleadings are insufficient of themselves to show bad faith in the answer of insured with regard to prior medical attendance. It is clear that, while such statements are material to the risk (Murphy v. Prud. Ins.Co.,
Appellant asks that the case be returned to the court of common pleas, to the end that that court may entertain a motion for a new trial. But no such motion was made in that court, so far as the record discloses. On the contrary, appellant quite apparently elected to stand on its motion for judgment n. o. v. and to take its chances thereon upon appeal. Under the circumstances, it is now too late to seek for the first time a retrial of the case upon the same evidence: Hanick v. Leader,
Judgment affirmed.
Mr. Justice SCHAFFER dissented.