11 A.2d 558 | Pa. Super. Ct. | 1939
Argued October 12, 1939.
Counsel for appellant either misunderstands or misapplies the ruling of the Supreme Court in Evans v. Penn Mutual Life Ins.Co.,
In this case, the applicant signed his application for insurance on November 18, 1935, and was required to answer the following questions in connection with his medical examination, the questions and answers forming part of his application and of the policy contract, if issued. "5. Have you ever been an inmate of, or have you ever received treatment at an asylum, hospital, sanatorium or cure? If yes, give date, duration, name of ailment and name of institution." His answer was, "Right inguinal hernia operation 1918 Pennsylvania Hospital."
"12(f) Have you ever had any surgical operation?" Answer, "No."
"12(g) Have you consulted a physician for any ailment or disease not included in your above answers" [Questions 11(a) to (d) and 12(a) to (e), all of which he had answered "No"] Answer, "No".
"13. What physician or physicians, if any, not named above have you consulted or been treated by within the last five years and for what illness or ailment. If none so state." Answer, "None".
It was shown by uncontradicted records of St. Joseph's Hospital, that the insured had been admitted to that hospital on May 27, 1935 and that the next day an operation had been performed by Dr. Herrman, in the course of which the patient was put under an anesthetic and a lump or mass about four inches by three inches, by two inches, had been removed from under his left arm. An examination of the lump removed from the insured's body showed that he had Hodgkin's disease, a rare and unusual disease which invariably causes death. It may be noted that the disease manifests itself only by the formation of a lump *264 or lumps in the tissues of the body, and one afflicted with the disease may be ignorant of its presence until the final stages are reached. The insured was not advised of the real nature of his ailment by Dr. Herrman, but was referred back to his family physician and he was advised by his family physician, after consulting Dr. Herrman, to take X-ray treatments at the University Hospital.
The records of the latter hospital show that X-ray treatments were there given the insured by Dr. Chamberlin, at the place where the growth had been removed, on June 12, June 13, June 27, July 30, October 1 (2 treatments) and October 8, 1935. On October 22, 1935 he returned to the hospital and complained of pain in his left arm and thorax. A blood count was made and he was directed to return in one week. On November 2, 1935 two X-ray treatments were given him at the hospital. On November 5, less than two weeks before he signed the application for insurance, another treatment was given, and the hospital records show that on that day a lump about the size of half a lemon had recurred and was visible at the same location under the insured's left arm. Thereafter X-ray treatments were given him at the same hospital on November 12, six days before he signed the application, and on November 26 and 30, December 3, 5, 7, 10, 12 and 14, and January 9, 11, 14 and 16, 1936, following the signing. He died on February 11, 1936 of a pulmonary hemorrhage, contributed to by Hodgkin's disease, with a known duration since May, 1935.
The authorities are clear that the fact that the insured was suffering from Hodgkin's disease on November 18, 1935, when he signed the application for insurance, would not of itself have prevented a recovery in this action, for it is fairly well established that no one told him that he had that disease or the seriousness of the ailment. But he did know, and was bound to reveal in his answers to the medical examination *265
questions that he had been an inmate of St. Joseph's Hospital and had received treatment there and that a surgical operation had been performed upon him there, less than six months before, and that he had received X-ray treatments at the University Hospital at the site of his operation at frequent intervals from June 12 to November 12, 1935. If he remembered a hernia operation which occurred seventeen years before, he was bound to recall the operation in a hospital less than six months before, and the eleven X-ray treatments in another hospital the last one of which had been given him less than a week before:Soltaniuk v. Metropolitan Life Ins. Co., supra, p. 142: Gimbelv. Aetna Life Ins. Co.,
As we said in the last mentioned case,
The information concealed and not imparted by this insured was material to the risk: Indovina v. Metropolitan Life Ins.Co., supra, pp. 168, 169, 172; March v. Metropolitan Life Ins.Co.,
An answer known to the insured to be false when made is presumptively fraudulent: Evans v. Penn Mutual Life Ins. Co., supra, p. 553; Kanatas v. Home Life Ins. Co., supra, p. 96;Mutual Life Ins. Co. v. Bamford, supra, p. 261; Loder v.Metropolitan Life Ins. Co., supra, p. 160; Ratkovic v.Metropolitan Life Ins. Co., supra, p. 497; Indovina v.Metropolitan Life Ins. Co., supra, pp. 171, 172.
We are satisfied from a review of the whole record that the learned court below committed no error in directing a verdict for the plaintiff for only the amount of the premiums paid the insurer by the insured.
The judgment is affirmed. *267