184 A. 754 | Pa. | 1936
Lead Opinion
Argued March 25, 1936. Plaintiff, beneficiary of a policy of insurance issued by defendant upon her husband's life, sues to recover the face amount of the policy. In a previous trial, a verdict was returned for plaintiff, whereupon a new trial was granted, on the ground that the verdict was against the *476 weight of the evidence. The second trial, had in the court below, resulted in another verdict for plaintiff. Defendant's motion for a new trial was again granted, on the same ground as in the previous instance. This appeal is by defendant from the denial of its motion for judgment n. o. v. Plaintiff has not appealed.
The insured made written application on January 29, 1931, for the policy, which was issued on the following February 4th. He died about three weeks later. The single premium paid was returned to plaintiff by defendant, accompanied by a denial of liability. The defense is that insured made false and fraudulent representations in his application, in reliance upon which defendant issued the policy. The application stated that insured had not been attended by a physician during the previous three years, and that insured had never had dyspepsia or syphilis. The testimony of defendant's witnesses, including that of several doctors who had attended insured, tended to show that these statements were false, that in fact insured had been attended by physicians a large number of times within the three years prior to the date of his application, and that he had suffered from dyspepsia and had several times been examined and treated for syphilis. Two doctors called as experts by plaintiff in rebuttal testified that, in their opinion, based on the testimony in the case, insured had never had syphilis.
Defendant has appealed from an order of the trial court granting a new trial. The usual rules governing such appeals apply, although the appellant's complaint is founded upon the dismissal of its motion for judgment n. o. v.: March v. Phila. W. C. Traction Co.,
Defendant's claim for judgment n. o. v. rests chiefly upon the proofs of death which were furnished to it by plaintiff in compliance with the terms of the policy. One of the proofs consisted of a claimant's statement, signed by plaintiff, and stating that insured had been treated by three physicians during the preceding two years. In another of the proofs, an attending physician's statement, it appeared that the physician had been consulted by insured for indigestion in 1930, and that the date of the inception of the disease causing death was "years ago." Defendant's contention is that these proofs, offered in evidence by plaintiff, were sufficient to take the case from the jury. The trial court, however, found that the proofs were offered and admitted specially, for the sole purpose of showing that the relevant provision in the policy had been complied with, and that they were not in the case generally. We think the trial court's finding in this respect must be accepted. After having offered the policy and application and having produced certain testimony in connection therewith, plaintiff rested. Defendant then moved for a nonsuit, on the ground that proofs of death had not been shown. After some discussion, plaintiff was permitted to reopen her case and offer the proofs. While it nowhere appears in the record that counsel for plaintiff expressly stated the offer to be special, nevertheless it is clear from what transpired that it was so intended and understood. The trial judge is obviously in a better position than we are to decide just how the evidence is offered and admitted in a situation of this sort. We therefore abide by his *478 finding. Since the proofs were not offered for the purpose of showing the truth of the matters therein asserted, defendant could not avail itself of them for that purpose without offering them as part of its own case. It did not do so, and its contention in this respect must accordingly fail. We express no opinion as to what the result would be if the proofs had been offered by defendant, since we are not now concerned with that situation.
Defendant further contends that plaintiff's reply to the new matter set forth in its affidavit of defense did not sufficiently deny the averments therein of attendance of insured by physicians and of his having suffered from dyspepsia. It is claimed that the reply to these averments, although following closely the language of the relevant statutory provision,1 is inadequate under the doctrine of Bankof Am. Nat. Tr. Sav. Assn. v. Sunseri,
The order of the court below is affirmed.
Dissenting Opinion
The insured in his application stated that he had not been attended by a physician during the previous three years. This statement was admittedly false. Doctors testified that they had attended him and their testimony was not contradicted. Under these circumstances, following our ruling in other cases, the policy was void and binding instructions should have been given for defendant. False statements in an application for life insurance as to the prior attendance of physicians are material to the risk and where the fact of attendance is uncontradicted, the question of liability on the policy is one of law and not for a jury's determination: New York Life Ins. Co. v. BodekCorp.,
Under the Act of May 17, 1921, P. L. 682,
In my opinion, binding instructions for defendant should have been given. Where this is so, it is error to grant a new trial and we will enter judgment for defendant: Walters v. FederalLife Ins. Co.,
For the reason stated, I dissent from the affirmance of the grant of a new trial. *481