35 A.2d 754 | Pa. Super. Ct. | 1943
Argued November 17, 1943. This is an action of assumpsit on a policy of life insurance.
The insured was examined on June 24, 1941 by the company's physician, who recommended that the policy be issued; he was accepted as an insurable risk and the policy was issued as of date of July 1, 1941. He died on January 22, 1942 of diabetic acidosis and diabetes mellitus.
The company offered to refund the premiums paid, but disputed payment of the amount of insurance on two grounds: (1) False and fraudulent answers by the insured as to the condition of his health in his application for insurance; and (2) that he made a false and fraudulent answer to question No. 27 in said application, to wit, "Have you ever received or applied for treatment at, or attended, any hospital, dispensary, sanitarium, cure or other institution?" To which, he made answer, "No".
From a judgment on the verdict in favor of the plaintiff beneficiary for the face amount of the policy with interest, the defendant has appealed.
We think the insured's answers to questions Nos. 22, 29, 30 and 31 in the application, were not shown to have been false and fraudulent by documentary evidence or admissions in the pleadings within the ruling in Evans v. Penn Mutual Life Ins. Co.,
These questions and answers were:
"22. Are you now in sound health?"
Ans. "Yes".
"29. (a) Have albumin, blood or sugar ever been found in your urine?"
Ans. "No".
"(b) Have you ever been told that you had symptoms of Bright's disease or diabetes?" *390
Ans. "No".
"30. Have you ever had or consulted or been treated by a physician or other practitioner for any of the following: . . . . . . Kidney disease. . . . . ."
Ans. "No".
"31. Have you consulted or been treated by a physician or other practitioner during the past five years? Give full particulars".
Ans. "March 1941 — Cold in stomach. Fully recovered".
The insured's representation1 that he was in sound health, (No. 22), in connection with his examination by the company's physician, is directly within the ruling of the Supreme Court inPrudential Ins. Co. v. Kudoba,
But question No. 27 of the application was in a different category. It called upon the applicant to answer whether he had ever received or applied for treatment at, or attended any hospital, dispensary, sanitarium, cure, or other institution. He did not have to know what was wrong with him that led to his going to or attending the hospital, etc. The records of the Episcopal Hospital, at Front and Lehigh Streets, show that the insured had been admitted to the clinic of the hospital as a patient on September 17, 1940 and September 25, 1940, less than nine months before he applied for this insurance. The question was a fair and reasonable one and the inquiry was material to the risk: Baxter v. N.Y. Life Ins. Co.,
The facts are very similar to the Soltaniuk case, supra, and require the same action as was taken in that case.
The judgment is reversed, and judgment is now entered in favor of the plaintiff and against the defendant for $14.21, with interest from July 27, 1942.