176 A. 538 | Pa. Super. Ct. | 1934
Argued October 17, 1934.
This is an action by a beneficiary, Jennie Stein, on a life insurance policy taken out by her daughter, Kate Stein, the insured. The insurance company defended on the ground that the insured made false answers to certain questions propounded by the company's medical examiner, which formed part of the application for insurance. These answers were material to the risk and, although by the terms of the policy they were representations and not warranties, they were sufficient to avoid the policy if the false answers were made by the insured. They related to whether she had ever undergone a surgical operation; or been under observation or treatment in any hospital; or had ever consulted a physician for, or suffered from, any ailment or disease of the middle ear. The answers to these questions as they appeared in the medical examination forming part of the application were `No.' As a matter of fact the insured had undergone an operation for the removal of some polyps from her nose about ten years before; and during, and following the course of this operation she had been treated in a hospital; and she had suffered from a running discharge from one of her ears for several years, for which she had received medical treatment, which ended about five years before she took out this insurance. The physician (Dr. Zacks), who attended her for these ailments, testified that there was a scar from an incision behind each ear which indicated a mastoid operation, but he had not performed them, and they did not appear to be recent. *111
The plaintiff showed in rebuttal that the insured had truly and correctly answered all the questions put to her by the company's medical examiner, and that the questions, the answers to which are here objected to, were not propounded by the examiner nor answered by the insured, but were inserted by the company's medical examiner after she had signed the application. There was some positive evidence in support of this position, which we shall refer to later. The trial judge left it to the jury to decide as a question of fact, whether the untrue answers relied on by the insurance company as a defense to the action were written in the medical examination paper, forming part of the application, before the insured signed it, or afterwards; holding that if they found the former to be the fact, there could be no recovery; if the latter, there could. The case is a close one, but in the light of the evidence hereinafter referred to, and the decisions of the Supreme Court in Suravitz v. Prudential Ins. Co.,
The following are some of the circumstances in evidence that support this ruling. In the first place the evidence rebuts any finding that the insured deliberately perpetrated a fraud on the defendant insurance company and took out insurance for her mother's benefit knowing that she was not an insurable risk, and expecting to enrich the beneficiary by the principal of the policy obtained in return for a few quarterly premiums. The evidence shows that the insured was in apparent sound bodily health; she had not had any recurrence of the trouble for which she had consulted Dr. Zacks for about five years; and what is most significant on this point, she was offered and refused a policy for $4,000 by this same insurance company, and only consented after persuasion by the company's agent, to accept the policy in suit for $2,000, the application for the $4,000 policy being used and attached as the application for the policy sued on. See Stein v. N.Y. Life Ins. Co.,
The evidence of Archie Stein was positive and definite. That of Reuben Stein less so. The company's medical examiner admitted that he had not complied with his instructions. His testimony was contradicted in some particulars by the company's agent and by the evidence of the insured's brothers and the policy of Gersen Stein.
In the peculiar circumstances of this case, we are not convinced that, under the decisions above cited, the court erred in submitting as a question of fact to the jury, (1) whether the insured had answered the questions relating to her previous condition of health *115 and they had been written down by the medical examiner prior to her signing the application, or (2) whether these answers had been written in by the medical examiner after the insured had signed the application, and without having been made by her; that in the former event there could be no recovery; in the latter, there could.
The case is different from those relied on by the appellant, where the insured, who could read, failed to read the answers inserted to the questions in the application before signing it. See Applebaum v. Empire State Life Assurance Society,
The appellant also contends that the retention for a year, by the insured, of the policy, which contained these false or incorrect answers in the `Medical Examination' attached to the application, amounted, in law, to an approval and adoption of the answers, and estops the plaintiff from alleging that they were not made by the insured. On this point the recent pronouncement of the Supreme Court in Rathblott v. Royal Indemnity Co.,
This disposes of the assignments relating to the refusal of judgment non obstante veredicto.
As to the assignments relating to the rule for a new trial, the evidence of declarations by the insured made after the issuance of the policy, as to her condition of health before the policy was issued, was excluded in accordance with the decisions of the Supreme Court in Oplinger v. N.Y. Life Ins. Co.,
We do not feel that the verdict was so clearly against the evidence as to require a new trial. On the contrary we think the jury might very properly come to the conclusion they did.
The assignments of error are overruled and the judgment is affirmed.