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November 12, 1957


Appeal, No. 221, Oct. T., 1957, from judgment of Court of Common Pleas of Lancaster County, March T., 1955, No. 45, in case of Helen E. Pfautz v. Sterling Insurance Company. Judgment affirmed.


John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellant.

Mark R. Eaby, Jr., with him David R. Eaby and Eaby & Eaby, for appellee.

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

Author: Hirt

[ 184 Pa. Super. Page 566]


Claimant applied for and received a health and accident policy from the defendant in February 1953. No medical examination was required, but in her application for the policy she answered "none" to both of the following questions: "Have you received any ... medical ... advice or treatment or had any local or constitutional disease within the last five years?" and "Have you ever been treated for any female trouble." To the further question: "Are the menstrual functions now regular and normal?" she gave an affirmative answer, and in her application she also answered "yes" to the following: "Do you hereby apply to Sterling Insurance Company for this policy to be issued solely and entirely in reliance upon the written answers to the foregoing questions, which you agree are true and correct to the best of your knowledge and belief?"

Plaintiff was stricken ill on June 9, 1953, about four months after applying for the policy; the diagnosis was "cerebral hemorrhage as a result of hypertension." She has been totally disabled by resulting partial paralysis since that date and the medical testimony is that her disability will continue indefinitely. Proof of claim for benefits for total disability was filed on July 15, 1953. The defendant denied liability on the ground that the representations made by plaintiff in her application for the policy were false and that she was chargeable with bad faith in making them because she knew they were false. In this action brought by plaintiff to recover on the insurance contract, the jury resolved that issue in plaintiff's favor; the verdict for her in the sum of $2,600 reflects benefits of $100 per month under the policy to the date of suit. Defendant

[ 184 Pa. Super. Page 567]

    in this appeal contends that the court erred in refusing to limit plaintiff's judgment to the amount of the premiums paid by her, because of her alleged fraud in applying for the policy.

Dr. Alleman, plaintiff's regular physician died on November 11, 1953, four months after she filed her proof of claim. At the trial, on cross-examination of the claimant by the defendant, on the subject of her visits to her doctor, she testified: "... if I needed something I went to Dr. Alleman, of course ... Maybe twice or three times [a year], something like that. It wasn't very often, I know that." And further fron her recollection, in response to the question whether she saw Dr. Alleman between February 19, 1948 and February 19, 1953, she said: "... I did occasionally - I went for heat - for menopause, injections for heat." In support of her contention that her application for the policy was made in good faith it was her position that she was not obliged to inform defendant of all of her visits to her doctor within the 5-year period because she was not seriously ill on any of the occasions of her visits. It is the law that the failure of an insured to report attendance or treatment by physicians does not alone constitute fraud, where the assured is not aware that he is suffering from or is being treated for a "grave, important or serious disease." Adams v. Metropolitan L. Ins. Co., 322 Pa. 564, 186 A. 144. In that case it was said: "It is clear that, while such statements are material to the risk ... the failure to report every attendance or treatment by a physician does not alone constitute fraud, as for instance where the application does not disclose attendance for headaches, grippe, acute colds, indigestion, or other comparatively minor illnesses" citing a number of cases in which the jury's verdict, in favor of the beneficiary, was upheld despite the nondisclosure. Again as said by the Supreme Court

[ 184 Pa. Super. Page 568]

    in Travellers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 438, 61 A.2d 809; "It has frequently been held that an applicant for insurance is not required to report illnesses or conditions which one would not ordinarily regard as of real gravity or importance." And in the present case plaintiff's failure to report treatment for menopause does not in itself convict her of bad faith. Menopause is a ...

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