Appeal, No. 2 | Pa. Super. Ct. | Nov 19, 1902
Opinion by
The two policies of life insurance in suit contain, inter alia, three provisions, upon the effect of which hangs this controversy. The first clause promises to pay “ the sum of money as provided in the third column of said schedule.” The third column provides, in one policy, “ Sum insured on the above terms and subject to correction for misstatement of age, $110.” The second policy is the same in this clause save thatthe amount in figures is $115. Section twelve of both policies makes them incontestable after three years. The defense set up in the affidavit is that the insured made a mistake in giving her age, and
Tf the misstatftmentm£^^u?-jgfere set up as a breach of warranty, or as violating- the contract whereby the company would be relieved from all contractual obligation, a different question would be presented. Here the defendant company says to the plaintiff in effect: “You have a valid policy; we are liable under it according to its terms. Those terms require the amount to be paid by us to be determined on the basis of the true age of the insured. This amount we stand ready to pay.” The learned judge of the court below misconstrued some of the expressions in the opinion in the case of Brady v. Prudential Ins. Co., 168 Pa. 645" court="Pa." date_filed="1895-05-30" href="https://app.midpage.ai/document/brady-v-prudential-insurance-6243044?utm_source=webapp" opinion_id="6243044">168 Pa. 645, upon which he based his judgment. The true effect of that decision is to sustain the conclusion indicated by what has been said herein, to which conclusion the case of Starck v. Union Central Life Ins. Co., 134 Pa. 45" court="Pa." date_filed="1890-03-31" href="https://app.midpage.ai/document/starck-v-union-c-l-ins-6239829?utm_source=webapp" opinion_id="6239829">134 Pa. 45, is additional support.
The judgment is reversed and a procedendo is awarded.