Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 2226, in case of Yetta Sherman v. Security Mutual Life Insurance Company of New York.
Ralph Schwartz, with him Schwartz and Cohen, for appellant.
Edward W. Madeira, Jr., with him James T. Giles, and Pepper, Hamilton & Scheetz, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones concurs in the result.
On July 15, 1965, Irving Sherman applied for life insurance from the Security Mutual Life Insurance Company of New York, the appellee. He felt well and
believed that he was in good health. On July 19, 1965, a physician for the company examined Mr. Sherman and confirmed that he was in good health. On August 24, 1965, between nine and ten a.m., a policy in the amount of $15,000 was delivered to Mr. Sherman at the place of business operated by him and his brother.
The evening of that same day, Irving Sherman complained of feeling nauseated. Since it was his day off, he went to a family physician, Dr. Nemez, for relief. Upon examining Mr. Sherman, Dr. Nemez discovered a mass, said to be "the size of a lemon," in his left midabdomen. Two days later x-rays established that Mr. Sherman had a tumor in his colon. The tumor was malignant. Surgery was performed on August 30, 1965, which may have prolonged his life but could not save it. Mr. Sherman died nine months later, on May 17, 1966.
Under the terms of Mr. Sherman's application for insurance: ". . . [A]ny policy issued on this application shall take effect on the date it is delivered to the Owner and the first premium is paid during the lifetime of each and every person proposed for insurance under such policy and then only if the health and other conditions affecting insurability remain as described in this application."
The appellee insurance company, taking the position that there was a material change in Irving Sherman's health between July 15, 1965, when he executed the application for the policy, and August 24, 1965, when the policy was delivered, denied coverage. His widow, the appellant, instituted an assumpsit action to recover the face amount of the policy.
Trial was held before a judge without a jury on August 1, 1968, and the court filed an opinion in which it found that the physical condition of Irving Sherman had ...