Appeal, No. 274, Jan. T., 1962, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1958, No. 1535, in case of Raymond P. Shafer and The First Pennsylvania Banking and Trust Company, Trustees, v. John Hancock Mutual Life Insurance Company. Judgment affirmed.
Henry T. Reath, with him Duane, Morris & Heckscher, for appellants.
John J. Dautrich, with him White and Williams, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE EAGEN
In this action of assumpsit, the trustees of an insurance trust seek recovery of the proceeds of a life insurance policy issued by the defendant company on the life of Walter S. Shiffer, deceased. A jury trial resulted in a verdict for the defendant. The plaintiffs alleging prejudicial error requested a new trial. The court en banc denied the motion, concluding that the defendant was entitled to judgment as a matter of law and that the reasons assigned in support of a new trial were academic. Plaintiffs appeal.
The policy bore an issue date of December 31, 1955, although it was not delivered until April 1956. The
proceeds were payable on the death of the insured to specific trustees for the benefit of the insured's family. The application form consisted of Part A - "Statements to Company's Agent" and Part B - "Statement to Medical Examiner." Two Part B's were executed, one on December 30, 1955, and the other on January 24, 1956, because two separate medical examinations were conducted due to the amount of the policy. Each Part B was signed by the insured, following a certification that, "The foregoing statements and answers are complete, true and correctly recorded."
Shiffer was killed as a result of an automobile accident on May 23, 1957.*fn1 The insurance company refused to pay the proceeds due under the terms of the policy on the ground that the insured had given false and fraudulent answers in the application.*fn2
In the two Part B's of the application referred to hereinbefore, a number of identical questions were asked of Shiffer concerning his prior medical history and state of health. These included the following: "had blood spitting? ... ever had or been told you had increased blood pressure? ... ever had x-rays? ... ever had electrocardiograms? ... ever had blood examinations or other studies? ... consulted, been treated or examined by any physician or practitioner within five years? ... attended or been treated, or confined in any hospital, clinic, sanitorium or similar institution during the past five years?" The answer to each question was "No" except ...