Patrick E. O'Leary, Altoona, Arnold M. Replogle, Pittsburgh, for appellant.
Scheeline & Leopold, E. S. Leopold, Altoona, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.
[ 166 Pa. Super. Page 336]
This is an action in assumpsit by the beneficiary in a life insurance policy issued by defendant. Plaintiff was the mother of the insured, Roy F. Good, to whom the policy was issued upon his written application, a copy of which was attached to the policy and made a part thereof.
It was agreed, as averred in plaintiff's statement of claim, that insured was killed on October 4, 1943, the policy then being in force, while engaged in flying as an instructor in aviation at Meadville, Pennsylvania, and that the policy issued on May 16, 1941, had attached thereto a special rider or clause entitled 'Special Provision as to Aeronautics,' which limited defendant's liability to payment of the reserve thereon in case of 'Death as a result, directly or indirectly, of travel in flight in any species of air craft, except as a fare-paying passenger on a licensed air craft piloted by a licensed passenger pilot on a scheduled passenger air service regularly offered between specified airports, * * *' The policy was an ordinary life policy with double indemnity for accidental death, and waiver of premium if insured should become totally disabled. It was delivered with the rider attached on May 17, 1941, and the first premium was then paid. The insured, in writing, accepted the policy which had been issued, and agreed to the inclusion of the aeronautics clause. A copy of this written acceptance was not attached to the policy.
At the trial plaintiff unsuccessfully sought to avoid the effect of the attached rider or aeronautics clause. The trial judge, at the conclusion of the trial, resolved
[ 166 Pa. Super. Page 337]
all the issues against plaintiff, and directed the jury to return a verdict for plaintiff in the amount of $172.27, the reserve due on the policy. Plaintiff's motions for judgment n. o. v. and for a new trial were overruled, and she has appealed from the judgment entered on the verdict.
Appellant on this appeal, as in the court below, contends that, although the rider or aeronautics clause was physically attached to and made a part of the policy, it was nevertheless ineffective because insured's written consent to its inclusion was not also attached to the policy. Appellant relies on section 318 of the Insurance Company Law of May 17, 1921, P.L. 682, 40 P.S. § 441, and argues that this section of the Act makes it necessary that both the rider and insured's written consent to its inclusion in the policy be attached to the policy. Section 318 provides as follows:
'All insurance policies, issued by stock or mutual insurance companies or associations doing business in this State, in which the application of the insured, the constitution, by-laws, or other rules of the company form part of the policy or contract between the parties thereto, or have any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, by-laws, or other rules referred to; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws, or other rules shall be received in evidence in any controversy between the parties to, or interested in, the policy, nor shall such application, constitution, by-laws, or other rules be considered a part of the policy or contract between such parties.'
The general purpose of this Act, and of earlier similar statutory provisions, is to keep before the insured all the terms of his contract with the company. Leonx v. Greenwich ...