181 A. 587 | Pa. | 1935
In this action of assumpsit plaintiff, as beneficiary of a policy of life insurance issued by defendant upon the life of her husband, seeks to recover the principal sum *66 provided by the terms of the policy. The jury returned a verdict for plaintiff, and from the overruling of defendant's motions for a new trial and for judgment n. o. v. the present appeal was taken.
The evidence is replete with contradictions and inconsistencies. The facts essential to a disposition of the case, however, are not disputed. Application for the policy was made by insured on October 4, 1928. The examination was had on October 31, 1928. In response to a question of the medical examiner, insured denied that he "had any medical advice during the past five years." The fact is that the applicant had been visited by a doctor in the previous July. At that time he was in a very serious condition. The doctor testified that he had a chronic heart inflammation and an enlarged liver. He further testified that "he couldn't get around" and that he "didn't think he would get out of bed because [of] the condition [his] heart was in." It is also admitted that the applicant had been examined by another doctor early in October. This doctor testified that "he had a chest full of trouble," that he had a "heart and lung condition" and that his lungs were "full of mucus" and "rattles of all descriptions."
Payment is resisted upon the ground that insured made false and fraudulent answers in his application for the insurance. That this contention must be sustained is self-evident. It is true that the policy provided that "all statements made by the insured or on his behalf shall, in the absence of fraud, be deemed representations and not warranties." It is also true that our recent cases have made it very clear that, where the policy contains such a clause, the insurer, to avoid the policy, must prove fraud on the part of the insured in the making of the statements: Livingood v. N.Y. Life Ins. Co.,
The record discloses many other circumstances strengthening the conclusion already reached. All of the elements of this case indicate clearly that the fraud was deliberate. It was conclusively demonstrated. The evidence is of such a character as to remove all doubt.
The judgment of the court below is reversed and judgment is herein entered for defendant.