Appeal from judgment of Court of Common Pleas, Civil Division, of Erie County, No. 2028 of 1968 A, in case of Esther I. Bremmer v. Protected Home Mutual Life Insurance Company.
James D. McDonald, Jr., with him Quinn, Plate, Gent, Buseck & Leemhuis, for appellant.
John F. Potter, with him MacDonald, Illig, Jones & Britton, for appellee.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an action in assumpsit to recover the proceeds claimed to be due on a life insurance policy issued by the defendant insurance company. The court below entered a summary judgment in favor of the defendant, following a motion therefor, pursuant to Rule 1035, Pa. R. Civ. P.*fn1 The plaintiff appeals.
On or about September 12, 1967, August M. Bremmer applied to the defendant for a life insurance policy. On September 18th, he was examined by a physician selected by the defendant, and the policy requested was issued. The policy provided, in part, that it could not
be contested after two years. The insured's wife, Esther I. Bremmer, was named primary beneficiary. August M. Bremmer died on December 22nd.*fn2 Esther I. Bremmer's claim for payment under the policy was refused by the defendant, and this suit followed.
For the purposes of this appeal, the pertinent part of the record may be summarized thusly:
In its answer to the complaint, the defendant averred under "New Matter" that August M. Bremmer, the insured, consulted a Dr. Hipps on September 1, 1967, complaining of pain in the right leg and difficulty in walking, and was advised that he was possibly suffering from a circulatory ailment and should see a Dr. D'Angelo, a cardiovascular specialist; that the insured consulted Dr. D'Angelo on September 1st and 6th; and that the insured failed to disclose these ailments or consultations either in his application for the policy or to the defendant's medical examiner, and thus gave false answers which misled the defendant, contrary to the insured's obligation under the contract.*fn3
In her reply to the allegations of the defendant, outlined before, the plaintiff admitted that the insured had visited Dr. Hipps and Dr. D'Angelo in September, 1967, and ...