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KARCHER v. SECURITY MUTUAL LIFE INSURANCE COMPANY (06/11/58)

June 11, 1958

KARCHER
v.
SECURITY MUTUAL LIFE INSURANCE COMPANY, APPELLANT.



Appeal, No. 121, April T., 1958, from order of Court of Common Pleas of Allegheny County, Jan. T., 1954, No. 1770, in case of Mary L. Karcher v. Security Mutual Life Insurance Company. Order reversed; reargument refused July 9, 1958.

COUNSEL

Gilbert J. Helwig, with him P. K. Motheral, and Reed, Smith, Shaw & McClay, for appellant.

Charles L. Stonage, with him Alexander C. Tener, Lester K. Wolf, and Tener, VanKirk, Wolf & Moore, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Gunther

[ 186 Pa. Super. Page 581]

OPINION BY GUNTHER, J.

This appeal is from the order of the court below granting plaintiff's motion for a new trial.

The jury returned a verdict for plaintiff for $616.20 which is the amount of the first annual premium paid

[ 186 Pa. Super. Page 582]

    by the insured. The suit was in assumpsit to recover the proceeds of a $20,000.00 life insurance policy issued to Dr. Karcher.

Dr. Karcher applied to the defendant company for life insurance on January 6, 1953, and a policy was issued on February 11, 1953. The evidence reveals that on the day following the application, he consulted a stomach specialist. The application provided that if applicant consulted or was treated by any physician between the date of his medical examination and the delivery of the policy, the policy should be void. The application also certified as to the state of his health and that the answers were true and complete. On June 12, 1953, X-ray studies disclosed that Dr. Karcher was suffering from a cancer of the stomach, the growth of which had been in progress for some time. He died on July 7, 1953 following an exploratory operation.

Defendant denied liability on the grounds that the insured misrepresented the state of his health in the application, and that his failure to report a consultation with a physician on the day following his insurance medical examination was a breach of an express provision of the policy.

The court below granted a new trial, because it was convinced that there was no credible testimony from which fraud or bad faith on the ...


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