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March 16, 1959


Appeal, No. 96, Jan. T., 1959, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1955, No. 2532, in case of McAvoy Vitrified Brick Company v. North American Life Assurance Company. Judgment affirmed.


Owen B. Rhoads, with him William H. Lowery, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

J. B. H. Carter, with him Francis E. Shields, Francis H. Scheetz, and Pepper, Bodine, Frick, Scheetz and Hamilton, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Jones

[ 395 Pa. Page 77]


This appeal is from a judgment in favor of the plaintiff company in the sum of $243,202.31, entered by the court below in an action of assumpsit based on an alleged contract of interim insurance on the life of Thomas B. McAvoy. The plaintiff company of which Mr. McAvoy was president was the designated beneficiary in his application to the defendant company for insurance. McAvoy submitted to the required physical examination and was approved by the defendant's medical examiner for the insurance applied for. Following the medical examiner's examination and approval of the applicant, the insurance company's authorized agent accepted McAvoy's payment in full of the first year's premium on the contemplated policy and delivered to him a "deposit receipt" and an "interim assurance certificate". Six days after his examination and approval by the insurance company's medical examiner, McAvoy died and, following his death, the company rejected the application for the assigned reason that, under the company's practice, the applicant was not an insurable risk for the amount of insurance requested.

The case was tried to Judge WATERS of the court below without a jury pursuant to agreement of the parties to the record. The trial judge held that the "deposit receipt" and the "interim assurance certificate" constituted integration of a contract of insurance

[ 395 Pa. Page 78]

    between McAvoy and the defendant company for the period between the agent's delivery of the interim assurance certificate and the ultimate decision of the defendant company at its home office whether to issue the policy applied for or reject the application. Judgment for the plaintiff beneficiary was entered accordingly. The defendant filed exceptions to the judgment so entered, contending that, on the basis of the record and testimony, the trial judge should have found in favor of the defendant company and, in the alternative, that the defendant is entitled to a new trial because of alleged errors in the trial judge's rulings on the admission of evidence.

In passing upon these exceptions, the court en banc said in limine that it was not disposed to view seriously the latter of the above stated contentions, saying in that connection: "There has never at any time been any substantial dispute of fact. The case was presented as one involving questions of law that would be determinative of the issues and hence was one appropriately submitted to the court sitting without a jury. ... None of the alleged irregularities during the trial of this case are of sufficient significance to affect the result. The facts were fully and fairly presented and it remains only to apply the law applicable in the circumstances." The foregoing conclusions were well warranted by the record; and nothing more need be said on that score.

We are fully persuaded of the correctness of the judgment entered below. Any further opinion by us in support thereof could at best be no more than a paraphrase of what was so well expressed by Judge WATERS for the court below, or else, a work of supererogation. We therefore affirm on the following excerpts from the opinion of Judge WATERS:

[ 395 Pa. Page 79]

McAvoy Vitrified Brick Company, desiring to expand its operations, sought to borrow $400,000 from Girard Trust Corn Exchange Bank. As an incident of this transaction, the bank requested that the company obtain insurance on the lives of the McAvoy brothers, Thomas B. Jr. and John C., respectively president and vice-president of the McAvoy Vitrified Brick Company, in the amount of $200,000 each. Through Messrs. Johnson & Higgins, insurance brokers, the McAvoys inquired of a number of life insurance companies regarding a plan of reducing term insurance to be coordinated with the amortization of the contemplated loan. Among these companies was the defendant, which, through its Philadelphia branch manager, submitted schedules of commuted values of reducing term policies of insurance. The McAvoys decided to apply for insurance with the defendant, and arrangements were made for them to undergo a physical examination by two physicians selected by the defendant. This examination took place on June 28, 1955. After the examination, on the same day, the brothers were informed by the defendant's branch manager that Thomas, the elder brother, was physically acceptable at the standard premium rate but that the physicians had found John's blood pressure too high for him to be so acceptable. Thomas B. McAvoy, Jr. thereupon, on June 28, 1955, filled out and delivered to the defendant's branch manager an application, on the defendant's printed form, for the desired policy ...

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