Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1959, No. 563, in case of Averlean Lynch v. Metropolitan Life Insurance Company.
Arthur W. Leibold, Jr., with him Barton J. Winokur, Owen B. Rhoads, and Dechert, Price & Rhoads, for appellant.
Tom P. Monteverde, with him Charles W. Woolever, and Schnader, Harrison, Segal & Lewis, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring and Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice Eagen joins in this concurring and dissenting opinion.
The refusal of motions for a judgment non obstante veredicto or, in the alternative, a new trial in an assumpsit
action based upon a life insurance policy is challenged on this appeal.
Important to a determination of one phase of this appeal, a recital of certain facts is necessary.
Jarman Lynch (Lynch), 21 years of age and with a very limited educational background, in the early part of 1958 noticed a "fullness in his right testicle". On August 25, 1958, he consulted a doctor who referred him to the University of Pennsylvania Surgical Clinic which he attended, first as an out-patient on August 29, 1958, and later as an in-patient on September 1, 1958. At that time, Lynch authorized the removal of his right testicle and such surgery took place on September 4, 1958. Discharged from the hospital on September 11, 1958, he had another hospital examination on September 18, 1958 and he was told to return in November for chest X-rays. Lynch was not advised of the diagnosis of his condition other than the necessity of removing his right testicle. Prior and subsequent to the surgery, Lynch was regularly employed in work which required lifting of heavy objects. During October, 1958, he experienced pains in his back which radiated down his right leg, pains which he associated with the performance of his work.
Thereafter, Lynch applied to the Metropolitan Life Insurance Company (Company), for an unrated policy of life insurance and, at that time, he signed part A of the usual life insurance application. On November 4, 1958, he signed part B of the application which consisted of questions addressed to him by the Company's medical examiner and his responses thereto. At that time the Company's medical examiner gave Lynch a physical examination. Lynch stated, in response to the part B questions, that: (a) he was then in good health and able to perform his full duties; (b) he had been "last sick" in 1957 in Washington, D. C. with a cold of "few days duration"; (c) he had not lost time from
school or work because of poor health during the past five years; (d) he had not been treated or sought advice concerning any ailment or disease of the prostate, bladder, pelvic organs, kidneys, bones, glands, eyes, ears, cancer, tumor, ulcers, rheumatism, gout, arthritis or varicose veins; (e) in September, 1958, at the "Penna. Hosp., Phila." he had undergone a "Rt. inguinal herniorrhaphy"; (f) he had not had an electrocardiogram, X-ray examination, laboratory examination or tests and had not consulted a physician within the past five years for any reason not therein mentioned. After certifying he had read the answers in part B, Lynch stated, in writing, that such answers were "correctly written" as given by him, were "true ...