Appeal, No. 145, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 2914, in case of Edna Z. Burton v. Pacific Mutual Life Insurance Company. Judgment affirmed.
Sanford M. Chilcote, with him Dickie, McCamey, Chilcote, Reif & Robinson, for appellant.
Jason Richardson, with him William J. Graham, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
On March 15, 1948, Frederick R. Burton made Application with the Pacific Mutual Life Insurance Company for a life insurance policy in the sum of $3750. The policy was issued on March 18, 1948 and on August 21, 1948, Burton died. His wife, the beneficiary under the policy, thereafter brought this suit in assumpsit against the Insurance Company to recover on the contract. Defendant filed an answer denying liability on the ground that Burton had made fraudulent misrepresentations in his application. The case went to trial on the issue thus framed and the jury returned a verdict for plaintiff. After denying defendant's motions for judgment n.o.v. and new trial, the learned court below entered judgment on the verdict and this appeal followed.
The case history of Burton's last illness may be briefly stated as follows: On January 9, 1947, Burton was operated on for the removal of tonsils and adenoids. During the course of the operation the surgeon in charge, a Dr. Boaz, noticed a growth at the base of the tongue which laboratory reports later showed to be cancerous. Dr. Boaz recommended a series of X-ray treatments which were given by one Dr. Grier until October 17, 1947, when they were abandoned. On May 3, 1948, he was taken to the hospital following a hemorrhage of the throat and died there August 21, 1948, the cause of death being officially recorded as cancer of the throat.
In answering the questions contained in the application for insurance on March 15, 1948, Burton stated that he was in good health, that he had never been treated for spitting blood, and that in the past five years the only physicians he had consulted had been in reference to the tonsilectomy. It is on the basis of
those answers that defendant resists payment. It is defendant's contention that those answers were false representations made to induce the issuance of the policy and that as a consequence its only liability is to return the premiums which Burton paid.
Plaintiff made out a prima facie case when she proved the contract of insurance with defendant and that all premiums were paid up until the date of death. In order to avoid the policy the burden then shifted to defendant to prove that the representations were false and that Burton knew they were false when he made them or otherwise acted in bad faith in making them: Evans v. Penn Mutual L. Ins. Co., 322 Pa. 547, 560, 186 A. 133. Where there is a conflict in the evidence either as to the falsity of the representations or as to the knowledge or bad faith of the insured the case must be submitted to the jury: Adams v. Metropolitan L. Ins. Co., 322 Pa. 564, 186 A. 144. An examination of the record in this case makes it clear that the issues were properly submitted to the jury.
The evidence discloses beyond any doubt that Burton was suffering from an incurable cancer of the throat at the time he applied to defendant for insurance. Obviously, he was not in good health at that time and he was being treated for more than defective tonsils. However, there is absolutely no evidence that he knew his answers to those questions were false. Defendant seeks to have us infer knowledge from ...