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September 30, 1966


The opinion of the court was delivered by: HIGGINBOTHAM

 The instant matter is before this Court on the motion of the plaintiff, Sylvia Ostrov, for judgment n.o.v., or in the alternative, a new trial. Jurisdiction is founded on diversity of citizenship between the parties. This case was tried before a jury, on December 2, 3 and 6, 1965. As to plaintiff's claim for payment on the $50,000 insurance policy, the jury returned a verdict favorable to the defendant on the basis of two special interrogatories submitted to them by the Court. Judgment was entered for the plaintiff in the sum of $3,482.26, which was the total amount plaintiff had paid to the defendant insurance company in premiums. For the reasons which follow both of plaintiff's motions must be denied.


 Plaintiff, Sylvia Ostrov, was the wife of Nathan Ostrov. From January 17, 1957 to the date of his (Part A) application of August 11, 1959 for a $50,000 insurance policy from defendant, plaintiff's decedent had been receiving continuous medical examinations, laboratory tests, electrocardiograms and consultations by medical specialists because of a variety of complaints, illnesses and symptomatology. On August 18, 1959, a week after the original application, Nathan Ostrov executed Part B which contained his answers to various questions pertaining to his past and present medical history. The falseness of his answers and their significance will be subsequently discussed; however, in response to the answers given by Nathan Ostrov, the defendant prepared a policy - which though prepared was not issued. This policy was to be owned by Nathan Ostrov, and the plaintiff was named the primary beneficiary. On August 31, 1959, the Ostrovs signed a form which was entitled "Owner Form" and signed a request for Check-O-Matic (the latter being a mode for the payment of premiums). The "Owner Form" named the plaintiff, Mrs. Ostrov, as the owner of the policy, and contained the following language:

It is understood and agreed that (1) except as otherwise provided above and in (2) below, all the statements and answers subscribed to by the Life Proposed on the * * * day of * * * 19 * * *, including the statements and answers referred to in Item 1 of the agreements therein and the statements below when and as completed and signed by the Life Proposed shall, together with this application, form the basis of the contract of insurance herein applied for, if one be issued, without affecting the use of the said basic application as the application for any other policy.

 On September 15, 1959, policy No. 24,175,691A was delivered to the Ostrovs and became effective. At that time they [the Ostrovs] signed both the original and a photostatic copy of an Application Amendment which filled the blank date on the "Owner Form" and contained the following language:

The undersigned hereby amends the application for Life Insurance made to your Company on the date stated above * * *
By stating the date on which the basic application was signed by the Life Proposed as August 11, 1959.
These amendments and declarations are to be considered as a part of the said application and subject to the agreements, covenants, and statements therein contained. The said application, together with these amendments, is to be considered as the basis of and as a part of the contract of insurance. The said application, as amended, is correct and true, and I hereby ratify and confirm the statements therein made as of the date hereof.

 Attached to the policy, at the time this amended application was signed, were all the documents signed by the Ostrovs, jointly, or by the decedent alone, with the exception of the request for a Check-O-Matic. In Part B of the "basic application" the decedent gave answers to the medical questionnaire, which, at the trial, were shown to be patently and wilfully false. These answers will be discussed at greater length below.

 On June 27, 1961, Nathan Ostrov died and the plaintiff then sought to collect the value of the policy. The defendant refused payment, on the ground that the decedent had misrepresented his medical history, and tendered to the plaintiff the total value of premiums paid. Mrs. Ostrov then brought this action. On November 14, 1964, plaintiff filed a Motion for Judgment on the Pleadings which was denied by Judge C. William Kraft, Jr.

 Evidence introduced at the trial conclusively proved that the following questions in the Part B application of August 18, 1959, were falsely answered "No":

Question: Have you ever been a patient in or visited a hospital, clinic, dispensary or sanitarium for observation, examination or treatment?
Answer: No.
Question: Have you ever had or been advised to have a surgical operation?
Answer: No.
Question: Have you ever been advised to modify or restrict your eating, drinking or living habits because of any health condition?
Answer: No.
Question: Do you have periodic physical examinations or checkups?
Answer: No.
Question: Have you ever had an electrocardiogram or x-ray examination or any laboratory examination or tests?
Answer: No.
Question: Have you ever consulted any physician, healer or other practitioner within the past five years for any reason not mentioned above?
Answer: No.

 As the answers above demonstrate, Nathan Ostrov denied that he had ever been a patient in, or visited a hospital or clinic for observation, examination or treatment; denied that he had been advised to have a surgical operation; denied that he had had periodic physical examinations; denied that he had had electrocardiogram or x-ray examination or any laboratory examination or test; denied that he had "consulted any physician or other practitioner within the past five years for any reason" not previously mentioned above. In every respect, his answers were false. The record of this case clearly establishes the following:

Dr. Seymour Siegel, a certified internist, testified that Nathan Ostrov was first seen by him on January 17, 1957, for weight control and reduction (N.T. 60; Ex. D-1). On February 11, 1957, Mr. Ostrov had some chest pain, and an EKG was performed (N.T. 60, 80; Exs. D-1, D-1-M). Thereafter, Dr. Siegel examined Nathan Ostrov because of his weight condition on February 18, June 11, June 27 (patient requested to control food intake and medication prescribed), July 1, July 11, July 30, October 29, November 5, November 19, and November 25, 1957 (N.T. 60-62; Ex. D-1); February 18, March 4, March 25, April 1, April 22, June 30, July 15, August 5, August 26, and December 29, 1958 (N.T. 62-63; Ex. D-1); and January 13, 1959 (N.T. 63; Ex. D-1).
Dr. Siegel saw Nathan Ostrov on February 21, 1959, when he complained of pain in his left side (Ex. D-1). Dr. Siegel had a blood count, blood platelet count and a urinalysis performed on that date (N.T. 63, 66-68; Exs. D-1-C, D-1-D). He saw Mr. Ostrov again on February 23, 1959 (N.T. 68; Ex. D-1). An EKG was performed on February 25, 1959 (N.T. 80; Ex. D-1-N), and barium, mercury and kidney x-rays were performed at Germantown Hospital at his request on February 26, 1959 (N.T. 80-81; Ex. D-1-L).
Although Dr. Beizer saw Mr. Ostrov on May 29, 1959 (Ex. D-2), Dr. Siegel continued to examine and treat Nathan Ostrov. He saw him on June 9, 1959 (N.T. 72; Ex. D-1-A), June 16, 1959 (N.T. 73; Ex. D-1-A) (supervision of medication prescribed by Dr. Beizer), June 22, 1959, when a blood count was performed (N.T. 74; Exs. D-1-A, D-1-F), June 29, 1959 (N.T. 74; Exs. D-1-A, D-1-E) (supervision of medication and blood test), July 20, 1959 (N.T. 74-75; Ex. D-1-A) (cramps in valves, occational headaches, medication - two tablets, three times per day), August 18, 1959 (N.T. 75, 86; Ex. D-1-A), August 27, 1959, when a blood count was ordered (N.T. 75; Exs. D-1-A, D-1-G), August 31, 1959, when Mr. Ostrov complained of cramps in his fingers (N.T. 76; Ex. D-1-A). August 31, 1959, was the date of the last examination or treatment by Dr. Siegel prior to issuance of the policy on September 15, 1959 (N.T. 79), although Dr. Siegel continued to treat Mr. Ostrov through February 28, 1961 (N.T. 169; Ex. D-1-B).
As stated above, Nathan Ostrov first saw Dr. Beizer on May 29, 1959 (Ex. D-2). On that day, a blood test was performed in Dr. Beizer's office (Ex. D-3), a special hematology study was run at Graduate Hospital (N.T. 140; Ex. D-4), and bone marrow was removed from Mr. Ostrov's sternum (Exs. D-2, D-5). On June 3, 1959, a lymph node was removed from the right cervical area (Exs. D-2, D-6, D-14; N.T. 137, 139).
Dr. Beizer, prior to the effective date of the policy, examined Nathan Ostrov on June 8, July 13, July 27, August 3, August 10, August 21, September 2 and September 14, 1959 (Ex. D-2). Blood tests were performed in Dr. Beizer's office on June 8, June 22, June 29, July 13, July 27, August 3, August 10, August 21, September 2 and September 14, 1959 (Ex. D-3).
Dr. Beizer kept Dr. Siegel advised of his examinations and treatments by letters dated August 4, August 12, August 27 and September 9, 1959 (Exs. D-7, D-1-O; D-8, D-1-P; D-9, D-1-Q; D-10-, D-1-R).
Subsequent to Nathan Ostrov's death on June 27, 1961, Dr. Beizer certified the cause of death as chronic lymphosytic leukemia of 2 years duration (Ex. D-15).

 In summary, Nathan Ostrov had seen Dr. Seigel 12 times in 1957, 10 times in 1958, and 12 times in 1959 prior to the effective date of the policy, and Dr. Siegel had prescribed head, stomach and kidney X-rays, an EKG, a G.I. Series, blood tests and a urinalysis.

 Interestingly enough, the day before Nathan Ostrov's execution of Part B, Dr. Siegel testified that Mr. Ostrov had visited him, and "at that time he had cramps in his calves, occasional headaches. The spleen continued to be enlarged and he was continuing on the medication * * * the medication is given in large doses at first and slowly tapered off so that at all times he was probably taking it perhaps three times a day, but the aim was to wean him away from it."



 In support of her motion for judgment n.o.v., the plaintiff contends: (a) that she did not sign each and every application document thus, the requirements of section 318 of the Pennsylvania Insurance Code, 40 P.S. § 441, were not met and the application documents could not be introduced into evidence; (b) the unsigned documents cannot be incorporated by reference into the signed application; and (c) that the request for a Check-O-Matic signed by her was an application document and since defendant failed to attach a copy thereof to the policy, then all the application documents are inadmissible and the policy alone is the entire contract.


 Section 318 of the Insurance Code (40 P.S. § 441), on which the plaintiff relies, reads as follows:

All insurance policies, issued by stock or mutual insurance companies or associations doing business in this State, in which the application of the insured, the constitution, by-laws, or other rules of the company form part of the policy of contract between the parties thereto, or have any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, by-laws, or other rules referred to; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws, or other rules shall be received in evidence in any controversy between the parties to, or interested in, the policy, nor shall such application, constitution, by-laws, or other rules be considered a part of the policy or contract between such parties.

 The plaintiff argues that since she did not sign all of the documents which were part of the application, the requirements of the Insurance Code were not complied with. This contention was first argued before Judge Kraft *fn1" on the plaintiff's motion for judgment on the pleadings and before me at trial. It was rejected on both occasions, and it must be rejected now. The plaintiff has cited several cases which she contends support her ...

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