The opinion of the court was delivered by: BARD
This case is before the Court at this time on the defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Such a motion is proper under Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The plaintiff is a Delaware corporation, and the defendants are citizens of Pennsylvania. The complaint requests rescission and cancellation of three insurance contracts on the life of John Fritsche, Jr., and relief from any liability under an application for further insurance, which was refused. The averred basis for relief is alleged misrepresentation by the insured in his application.
The specified grounds for the defendants' motion to dismiss are: (1) The complaint fails to set forth any respect in which the answers of the insured defendant in the application for insurance were incorrect or materially incomplete; (2) the complaint shows on its face that the answers made by the insured defendant to the question in the application for insurance were and are true and in no respect false, misleading, or materially incomplete.
The answers of defendant John Fritsche, Jr., are alleged to be incomplete and untrue, and to have been so material to the risk concerned that, had they been truthfully and completely answered, the plaintiff would not have issued the policies.
Proceeding to a consideration of the allegations specifying the questions and answers averred to have misled the plaintiff by reason of their alleged untrue and incomplete nature, it becomes apparent that the complaint does set forth in what respect the application was materially untrue and incomplete. No copy of the application is attached to the complaint, but the pertinent questions and answers are set forth therein, and are as follows:
"E-2. Have you consulted a physician for, or suffered from any ailment or disease of,
"(c) The stomach or intestines, liver, kidneys or bladder?
"(Answer) Yes. Abdominal pain in 1936. Complete G.I. studies failed to reveal any abnormalties. No recurrence.
"5. Give name and address of last physician you consulted, date, duration and diagnosis of the illness.
"(Answer) Yes. Dr. Taubel.
"6. What physician or physicians, if any, not named above, have you consulted or been examined or treated by within the past five years? Name and address (If none, say none), Date, ...