48 A.2d 37 | Pa. Super. Ct. | 1946
Argued April 8, 1946. In his application for a policy of insurance, plaintiff's husband admittedly made false answers to certain questions material to the risk. To questions "9a. Has any application by you for any insurance ever been rejected, postponed, refused, rated up, or withdrawn?" *251 and "10a. Have you within the last five years, consulted or been treated by any physician or physicians or other person in regard to personal ailment?", the insured answered "No."
At the trial, it affirmatively appeared from competent and uncontradicted documentary evidence that the insured had previously made application to another life insurance company for a policy of insurance and had been rejected for the reason that he was found not to be an insurable risk. It also affirmatively appeared from the testimony of Dr. A.M. Benshoff that he had treated the insured within a period of five years prior to the date of said application several times for rheumatism, bronchitis, and acid stomach and that during the course of his treatment he discovered that the insured had an "organic heart condition" but that he did not treat him for this condition or discuss it with him.
The case was submitted to the jury which found for plaintiff and from the entry of judgment for the defendant n.o.v., plaintiff appeals.
The learned judge of the court below based his action solely on the false answer to the question as to other insurance, holding that the evidence as to the medical history, while uncontradicted, being the oral testimony of a physician called as a witness by defendant, was, under the authority of Evans v. PennMutual Life Insurance Co.,
The application, a copy of which was attached to the policy, was, by the express terms of the policy, made a part thereof. Following the questions and answers by the insured appears the following declaration: "I, HEREBY DECLARE that all the foregoing statements and answers are complete and true, and I agree that all the foregoing statements and answers, together with this *252
declaration, shall constitute the application and become a part of the contract of insurance hereby applied for. I further agree that the certificate herein applied for shall be accepted by me subject to the privileges and provisions therein contained." Plaintiff bases her appeal solely on the ground that defendant failed to prove that the insured knew the answer to the question was false or that he otherwise acted in bad faith. It is true that it does not appear that the insured was notified that his application with the other insurance company had been rejected, but bad faith may be inferred from his failure to reveal to defendant that he had made such application, notwithstanding he had not been told of its rejection: Stawartz v. Western LifeIndemnity Co.,
The prior rejection was material to the risk (Applebaum v.Empire State Life Assurance Society, supra) and a false answer in respect thereof permits the insurer to avoid the policy. Prevetev. Metropolitan Life Insurance Co.,
"The rule governing cases of this sort was set forth in Evans v. Penn Mutual Life Ins. Co.,
The judgment is affirmed.
Judges RHODES and ARNOLD would reverse the judgment and reinstate the motion for a new trial.