Appeal, No. 210, Jan. T., 1958, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1957, No. 7883, in case of Kathie V. Syme et al. v. Bankers National Life Insurance Company. Order reversed.
Sigmund H. Steinberg, with him Samuel P. Lavine, and Blanc, Steinberg, Balder & Steinbrook, for appellant.
Owen B. Rhoads, with him William H. Lowery, and Barnes, Dechert, Price, Myers & Rhoads, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This action in assumpsit is based on a policy of insurance issued by the defendant company on March 15, 1955, on the life of M. Herbert Syme who died on August 17, 1956. The company refused to pay the benefits stipulated in the policy on the ground that it was fraudulently obtained. The named beneficiaries thereupon instituted the present action in order to recover on the contract.
In addition to averring the issuance and delivery of the policy, payment by the insured of the premiums due thereon in his lifetime and the insured's death, the complaint sets forth that the application for insurance, which Syme had signed, was subsequently altered by the general agent of the company (who had solicited and received the application) and that the policy which was delivered to and accepted by the applicant was not the policy specified in the application when it was signed by him.
The defendant's answer substantially admitted these averments of the complaint but alleged that the general agent of the company, in adding to the application after it had been signed by the applicant, was acting as the agent of the insured and that the latter had thereafter ratified the agent's addition to the application by accepting the policy with a copy of the altered application attached. The defendant further alleged, under a heading "New Matter", that the insured, in his answers to certain of the questions propounded in the application, had made misrepresentations, material to the risk, which served to render the policy invalid.
The plaintiffs filed what they mistakenly termed preliminary objections under Rule 1017 (b)(4) of the Rules of Civil Procedure in the nature of a demurrer to the defendant's answer. The pleading expressly moved for judgment for the plaintiffs on the ground that the matters alleged by the defendant's answer were insufficient in law as a defense to the action, and concluded with a prayer that judgment be entered for the plaintiffs. What the pleading actually amounted to in substance and effect was a motion for judgment on the pleadings under Rule 1034 of the Rules of Civil Procedure, and is to be so regarded. After argument, the court dismissed the so-called preliminary objections, thus refusing the plaintiffs summary judgment in an
order from which this appeal was taken. Such an order, although interlocutory, is nevertheless appealable under the Act of April 18, 1874, P.L. 64, 12 PS § 1097, "which made appealable the refusal of the analogous motion, under prior practice, of judgment for want of a sufficient affidavit of defense": Wark & Company v. Twelfth & Sansom ...