filed a motion on April 23, 1951 to amend the findings of fact and conclusions of law, which motion is now before me.
Hearings on this motion were held. Testimony was taken and depositions were filed.
On the basis of this testimony and the deposition, I find as a fact that a copy of this self health certificate was attached to Edmond Nacchio's policy when the policy was delivered to his brother.
I further find as a fact that in connection with insured's application for this life insurance policy, insured was not given any medical examination whatsoever, as might be implied from the self health certificate, but that defendant attached a medical examination dated November 13, 1947 in accordance with its custom of not requiring a second medical examination within sixty days of a prior examination.
The crux of this case remains the same- the admissibility of the application or any part thereof into evidence.
In view of these new findings of fact, my previous discussion of law in this case is no longer applicable. Instead of having failed to attach to the policy the whole application as signed by insured, which failure prevented any part of the application from being admitted into evidence, defendant has now proved that it attached more than the whole application.
No Pennsylvania cases have been called to my attention wherein the question of 'too much' rather than 'too little' has been attached to a policy as part of insured's application.
In these circumstances the logical thing to do, it seems to me, is to rule out those papers included in the insurance contract that were not part of the whole application as signed by insured, cf. Fidelity Title & Trust Co. v. Metropolitan Life Insurance Co., 305 Pa. 296, 157 A. 614, and to leave in only those parts of the application that do comprise the whole application.
By such a ruling the whole application may be admitted into evidence, and each side will have before it only those papers upon which it is entitled to base its case.
An insurance company should not be penalized for attaching too many papers to insured's policy so long as the whole application as signed by insured is included in the attached papers.
In this manner, the requirements of the Act of May 17, 1921,
are complied with, and the protective purpose of that statute is not defeated. Sandberg v. Metropolitan Life Insurance Co., 342 Pa. 326, 328-329, 20 A.2d 230.
The whole application as signed by insured consists of 'Application to the New York Life Insurance Company- Part I' dated December 29, 1947, and the self health certificate dated January 6, 1948. Copies of both were attached to insured's policy when it was delivered to insured's agent, his brother, and both may be admitted into evidence as part of the insurance contract.
Part I of the application for insurance provides in part: 'It is mutually agreed as follows: 1. That the insurance hereby applied for shall not go into force unless and until the policy is delivered to and received by the Applicant and the first premium thereon paid in full during his lifetime, and then only if the Applicant has not consulted or been treated by any physician or practitioner * * * since the time of making this application if no medical examination is made, and thereupon the policy shall be deemed to have taken effect as of the date specified * * * above'. (Emphasis supplied.)
This quoted provision is a condition precedent to the effectiveness of the policy. Benzinger v. Prudential Insurance Company of America, 317 Pa. 561, 176 A. 922.
The medical history of insured, as set forth in the filed stipulation of facts and related in my prior opinion, is now relevant to prove insured's failure to comply with this condition precedent.
Accordingly, defendant's motion to amend the findings of fact and conclusions of law will be granted.