Appeal, No. 104, Jan. T., 1961, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1958, No. 765, in case of Bernice Ross v. Metropolitan Life Insurance Company. Order reversed.
Peter P. Zion, for appellant.
Owen B. Rhoads, with him John T. Subak, and Barnes, Dechert, Price, Myers & Rhoads, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
This is an appeal from an Order which overruled plaintiff's motion for judgment on the pleadings under Rule 1034 of the Rules of Civil Procedure. This appeal raises several questions of law which, as we shall see, are very close.
A motion for judgment on the pleadings, like preliminary objections, is the equivalent of the old statutory demurrer and admits all facts which are well pleaded. Necho Coal Co. v. Denise Coal Co., 387 Pa. 567, 128 A.2d 771; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491. Such a motion should be granted and judgment should be entered only in a case which is clear and free from doubt, or as it is sometimes expressed, only when it is clear that no meritorious legal defense is raised. Cases, supra.
In order to avoid any possible future mis-understanding, we note that the Order of the lower Court which overruled plaintiff's motion for judgment on the pleadings, although interlocutory, is appealable under the Act of April 18, 1874,*fn1 as analogous to a motion for judgment for want of a sufficient affidavit of defense. Syme v. Bankers National Life Insurance Co., 393 Pa.600, 144 A.2d 845.
Plaintiff, the beneficiary in an insurance policy issued on the life of her husband, Sidney Ross, brought an action in assumpsit to recover the proceeds of this policy which was issued by defendant. On December 3, 1956, Ross answered the questions in and signed Part A of an application to defendant for a $10,000 ordinary whole life insurance policy. On December 15, 1956, Ross answered the questions in and signed Part B of an application for the same policy. On December 28, 1956, defendant notified Ross that it would not issue an ordinary whole life insurance policy because of his high blood pressure, hypertension, and personal history, but would issue an intermediate whole life policy, assuming heart chart and urine specimen were satisfactory.
The intermediate whole life policy required payment of higher premiums than an ordinary whole life policy. On January 30, 1957, Ross applied for this intermediate whole life policy by executing an application amendment which was attached to the policy. This amendment changed the insurance classification from ordinary whole life to intermediate whole life and made some change in the plan of payments. Defendant, based upon the application and the application amendment which were dated and ...