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PAVIA v. STATE MUTUAL LIFE ASSURANCE COMPANY WORCESTER (09/28/55)

September 28, 1955

PAVIA, APPELLANT,
v.
STATE MUTUAL LIFE ASSURANCE COMPANY OF WORCESTER, MASSACHUSETTS.



Appeal, No. 100, April T., 1955, from judgment of Court of Common Pleas of Allegheny County, April T., 1950, No. 2242, in case of Dolores C. Pavia v. State Mutual Life Assurance Company of Worcester, Massachusetts. Judgment affirmed.

COUNSEL

C. Francis Fisher, with him Daniel B. Winters, Newman & Stein and Brenlove & Fisher, for appellant.

Gilbert J. Helwig, with him Reed, Smith, shaw & McClay, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Woodside

[ 179 Pa. Super. Page 274]

OPINION BY WOODSIDE, J.

This is an appeal from the refusal of the court below to grant the plaintiff's motions for judgment n.o.v. and a new trial after a verdict in her favor in the amount of $846,50 in an action in assumpsit brought against the defendant insurance company on a life insurance policy in which plaintiff was named beneficiary.

The beneficiary sued to recover $15,000, the face amount of the policy issued on her late husband's life, but received a verdict for only the amount of the premiums paid to the insurance company, and interest thereon. As the insurance company admitted liability for the amount of the verdict, the judgment entered by the court below was in effect a judgment for the defendant.

[ 179 Pa. Super. Page 275]

The appeal was taken originally to the Supreme Court, but remitted to this Court.

The fundamental question involved in the case is whether the deceased, to whom the policy was issued, made statements concerning his health in the original application for the policy and the application for reinstatement after it had lapsed, by virtue of which the company would not be liable on the policy.

Because dates are important the facts are stated chronologically as follows: On October 13, 1947 Ralph Pavia consulted Dr. John M. Conway concerning an infection in his nose and throat and for an enlarged gland which had caused a lump on the side of his neck about the size of a small egg. On November 6, 1947 Dr. Conway operated on Pavia in the Eye and Ear Hospital. He removed tonsil fragments and adenoid tissues, making access through the patient's mouth. At the same time he made an external incision at the side of the patient's neck and removed a section of the enlarged cervical gland for the purpose of a biopsy. The biopsy showed that Pavia had lymphosarcoma, a condition which a layman would refer to as cancer.

Dr. Conway did not tell Pavia the nature of his illness, but sent him to Dr. George W. Grier for a series of x-ray treatments. These treatments started November 13. During the treatments the enlarged gland subsided. Another gland on the other side of his neck then became enlarged, but also subsided under x-ray treatment. During these treatments Pavia continued to consult Dr. Conway and at one time when he complained that the x-ray treatments "upset him," he was told by the doctor that if he did not continue the treatments his condition might turn into cancer.

During the course of these x-ray treatments by Dr. Grier, Pavia, at the insistence of his sister, went to Dr. John S. Saling for a physical examination. Dr.

[ 179 Pa. Super. Page 276]

Saling saw him 4 or 5 times, the first time being shortly before January 20, 1948.

On that date Dr. Saling sent Pavia to Dr. John F. Suess for additional tests. Dr. Suess removed blood from Pavia's finger and arm for ...


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