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NACCHIO v. NEW YORK LIFE INS. CO.

March 30, 1951

NACCHIO et al.
v.
NEW YORK LIFE INS. CO.



The opinion of the court was delivered by: BARD

Dec. 17, 1951.

This is a civil action to collect the face amount of a life insurance policy plus that part of the premium paid but unearned before insured's death.

 A jury trial was waived and a stipulation of facts was filed, each party reserving the right to object to relevancy. At the hearing before me the plaintiff objected to the relevancy of some of the facts set forth in the agreed stipulation. At the conclusion of the hearing plaintiffs submitted a motion for judgment in their favor and defendant also submitted a motion for judgment in its favor.

 I make the following special Findings of Fact:

 1. Plaintiffs are Anthony Nacchio, Joseph Nacchio and John Nacchio, a minor, *fn1" by his natural guardian and mother, Marie Nacchio, all residents of Pennsylvania.

 2. Defendant is New York Life Insurance Company, a New York corporation, doing business in Philadelphia, Pennsylvania.

 3. On November 5, 1947 Edmond Nacchio applied to defendant for a policy of life insurance in the sum of $ 7500.

 4. Pursuant to that application, Edmond Nacchio was examined by Dr. Charles J. H. Barnett, the medical examiner of defendant, on November 13, 1947.

 5. That application for insurance was approved by defendant and policy No. 19,201,168 in the fact amount of $ 7500 was issued to and delivered to Edmond Nacchio December 6, 1947. That policy is not involved in the present action.

 6. On December 29, 1947 Edmond Nacchio made a written application to defendant for a policy of life insurance.

 7. On January 6, 1948, pursuant to this application, and without any medical examination, defendant issued the policy involved in the instant suit No. 19,203,954 in face amount of $ 3000 to Edmond Nacchio (hereinafter called insured).

 8. On January 10, 1948 this policy was delivered to insured's brother, who paid the first premium with his personal check.

 9. Plaintiffs are the beneficiaries named in this policy.

 10. Insured died April 6, 1948.

 11. Due proof of death was submitted to defendant, who refused to pay the proceeds of the policy but tendered $ 116.39, the amount of the premium paid, together with interest, to Marie Nacchio, the executrix of insured's estate.

 12. This tender was refused.

 13. By its answer to the complaint, defendant has renewed this tender.

 14. The application, as signed by insured on December 29, 1947, included only 'Application to the New York Life Insurance Company- Part I'.

 15. The application, as attached by defendant to the policy when issued on January 10, 1948, included (a) Part I referred to above, (b) a Part II insured's 'Answers to the Medical Examiner' given and signed by insured at the time of the medical examination for the prior $ 7500 policy and dated November 13, 1947, (c) a hand written, signed statement of insured dated November 21, 1947 certifying his correct date of birth, (d) an amendment dated December 2, 1947, signed by the insured, agreeing that insurance be written with age advanced eight years, and (e) a similar amendment dated January 6, 1948 but not signed by insured. Photostatic copies of these papers are attached to the complaint.

 16. Insured did not consent to defendant's attaching to his policy in suit the papers in (b), (c), (d) and (e) listed in the preceding paragraph.

 17. A self health certificate dated January 6, 1948 was signed by insured. A photostatic copy is attached to the ...


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