The opinion of the court was delivered by: SCHOONMAKER
This is a suit in equity, in which the plaintiff is seeking to eliminate from three life insurance policies which it issued upon the life of the defendant Edward B. Davis, the disability and double indemnity provisions.
The case first came to the attention of the court on defendants' motion to dismiss the bill of complaint, because: (1) It discloses no ground of equitable relief; (2) the plaintiff has an adequate remedy at law. This court (McVicar, J.), on June 28, 1933, denied this motion. The case was then heard on bill, answer, and proofs. On these we find the following facts:
1. The plaintiff is a mutual life insurance company, incorporated under the laws of the state of New York, and is a citizen of said state.
2. Edward B. Davis and Eleanor J. Davis are husband and wife, and citizens and residents of the commonwealth of Pennsylvania and of the Western District thereof. The Butler County National Bank & Trust Company of Butler is a banking corporation incorporated under the National Banking Act of the United States of America [see 12 USCA § 21 et seq.], and has its place of business in said Western District of Pennsylvania.
3. The amount in controversy in this case exceeds the sum of $3,000, exclusive of interest and costs.
4. On April 16, 1929, the plaintiff wrote its policy of life insurance No. 10,618,368 in the face amount of $10,000 on the life of Edward B. Davis, one of the defendants. The defendant Eleanor J. Davis is designated therein as beneficiary. A true and correct copy of said policy is attached to the bill of complaint.
5. As a prerequisite to the issuance by the plaintiff of the aforesaid policy, said Edward B. Davis made and signed an application to the plaintiff for such insurance. As a part of said application, said Edward B. Davis, on January 1, 1929, made answers to the plaintiff's medical examiner to questions contained in part II of the application, and signed part II of the application. A copy of said application, both parts I and II, is attached to and made part of said policy. The answers appearing in said application to the questions contained therein are the correctly recorded answers made to the respective questions by said Edward B. Davis. Included in the questions propounded to and answers made by said Edward B. Davis are the following:
"7.B. Have you ever been under observation or treatment in any hospital, asylum or sanitarium? No.
"E. Have you ever raised or spat blood? No.
"8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of
C. The Stomach or Intestines, Liver, Kidneys or Bladder? No.
"10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers? No.
"11. What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by within the past five years? None."
In his answers to the questions prior to No. 10, said Edward B. Davis named no physician or practitioner nor any ailment or disease whatsoever.
6. Also in said application Edward B. Davis stated:
"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree ...