193 A. 400 | Pa. Super. Ct. | 1937
Argued April 30, 1937. The plaintiff, Clara W. Boltz, brought this action to recover the face of a policy of life insurance issued by defendant and recovered a verdict for the amount of installments due when the action was begun. Judgment was entered for the plaintiff on the verdict and defendant has appealed, assigning as error the refusal of its motion for judgment n.o.v.
On trial the plaintiff made out a prima facie case and defendant then offered proofs tending to show that the insured, in his written application for the insurance, had knowingly made false and fraudulent answers to questions which were material to the risk, and that such answers were at the time examined by the beneficiary who likewise knew that the answers were false. The ultimate question involved is whether the fraud relied upon was established by proofs of such a character that the question as to the existence of fraud was *149 for the court and not for the jury. It is conceded that the answers complained of were material to the risk and were in fact not true, but plaintiff strenuously denied that the insured knowingly or fraudulently made such false answers.
The policy was issued April 18, 1933, after a written application by the insured and he died May 12, 1934. Plaintiff admits that the defendant has tendered repayment to plaintiff of the premiums received by it. The policy contained the standard provision that "all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties." In such a case the insurer to avoid the policy must prove fraud upon the part of the insured in the making of the statements; he must show not only that the answers were false in fact, but that the insured knew they were false when he made them: Stein v. NewYork Life Ins. Co.,
The Supreme Court in a recent case, Evans v. Penn Mutual LifeIns. Co.,
The statements in the application upon which defendant relies were as follows: "6. Occupation. If more than one, state all. Nature of Employer's business. Answer: Bench Work — Westinghouse Elec. 7. Exact duties of occupation. A. Bench work mechanic. 8. Any change in occupation contemplated? If yes, give particulars. Answer No. 9. Place of business (City, Street and No.) By whom employed? Answer: East Pittsburgh, Westinghouse Elec. Mfg. 10. Former occupations (within the last ten years). Answer: Same. 6. Present condition of health? *150 Answer: Good. 7. (a) When last sick? February, 1933. (b) Nature of last sickness? Cold. (c) How long sick? Answer: two weeks, Not confined. 9. Any physical or mental defect or infirmity? If so, give particulars? Answer: No. 11. Have you had any surgical operation, serious illness or accident? If yes, give date, duration and name of ailment? Answer: No. 15. Have you ever been told that you had any heart trouble? Answer: No. 16. Name and address of your usual medical attendant? Answer: Dr. Wright. 17. Have you ever had any of the following complaints or diseases? . . . . . . Disease of the heart . . . . . . Syphilis, Spinal disease . . . . . . if yes, give particulars, dates and duration? Answer: No. 18. Have you been attended by a physician during the last five years? If yes, give name of complaints, dates, how long sick, and name of physician? Answer: February, 1933, Cold. 20. How much time have you lost from work through illness during the last five years? Answer: None."
The defendant offered proofs tending to show that the insured, prior to 1928, was by occupation an instrument maker in the research department of Westinghouse Electric and Manufacturing Company. At that time he was compelled to give up his work due to failing eyesight and was not employed again but received relief from that company under a plan maintained by it. Defendant called as a witness Dr. H.L. Mitchell who testified that he treated insured from August 17, 1928, until about the time of his death, seeing him professionally during the latter part of that period on an average of once a month; that insured was suffering from an inflammation of the nervous system caused by syphilis; that for eight months before insured first consulted him his vision was failing and continued to fail to such an extent that he could not perform his work; and that his mentality was dulled and he had a poor memory. Later there developed an aneurysm of the *151 aorta which was the direct cause of death. Due to the nature of the disease and a desire on the part of the physician not to retard recovery, the physician did not advise the patient of the cause of his illness but did communicate the facts to the wife, advising her as to both the syphilitic condition and the heart ailment. The insured was treated both at a hospital and privately.
It is well settled that questions as to the truth or falsity of the answers and whether they were given by the insured in good faith are ordinarily for the jury: Evans v. Penn Mutual Life Ins.Co., supra; Suravitz v. Prudential Ins. Co.,
We will therefore now limit our reference to those facts which were established by proofs of such character that the question became one of law for the court. It must be conceded that if the only facts not correctly stated by the insured were those with reference to the assertion that he did not have syphilis, the question would be for the jury for the defendant not only failed to prove that insured knew that he had that disease, but the defendant's own evidence tended to show that insured did not know that he was suffering from syphilis. In addition, the evidence as to the existence of that affliction depended solely upon oral proofs.
Defendant relies on several representations made by the insured, to wit, that at the time he made his application he was employed as a bench mechanic by Westinghouse when he had not been so employed since 1928; that his condition of health when the policy was issued was good and that he did not have any physical or mental defect or infirmity when in fact his vision was so affected by disease that he was not gainfully employed; that he failed to disclose the fact that he had been attended by Dr. Mitchell although he was treated by that physician for almost five years continuously; *153 and finally that he had not lost any work through illness for five years when as a fact he had not been employed since August, 1928, due to the condition of his eyes. The plaintiff was called as a witness and admitted that the insured had been attended by Dr. Mitchell over a considerable period up to the time the policy was issued and afterwards; that due to the condition of his eyes he did not work after August, 1928, for Westinghouse or any other employer. The proofs of death submitted by the plaintiff also showed that the insured did not attend to his usual work after 1928 and that he was treated from 1928 by Dr. Mitchell.
The inquiries as to the attendance by a physician, as to absence from work, and as to health and physical defects and infirmities were matters material to the risk: Murphy v.Prudential Ins. Co.,
The falsity of these answers was established by the testimony of the plaintiff, the beneficiary in the policy, and by the proofs of death submitted by her, and they were not contradicted.
The unreported attendance by a physician and the physical defects taken with the inability to work due to that condition, were so serious and so recent that the insured could not have forgotten them. The facts bring the case within the description given in the Evans case, supra (p. 553): "The circumstances preceding and attending the making of the statements may be such that the insured must be said to have been aware of their falsity at the time, or that an inference of fraud is otherwise irresistible, as for instance where an unreported illness or disability of insured was so serious and so recent that he could not have forgotten it." Also, see New York Life Ins. Co. v.Brandwene,
Judgment reversed and it is directed that judgment be entered for the defendant.