The opinion of the court was delivered by: NEWCOMER
1. The Plaintiff, Caroline H. Annett, is the widow of William Annett and the sole beneficiary of a life insurance policy issued by the defendant and bearing policy number 01-227-235. The plaintiff is a citizen of Pennsylvania.
2. The defendant in this case is the Nationwide Life Insurance Company, a corporation existing under the laws of a state other than Pennsylvania, and having its principal place of business in Columbus, Ohio.
3. On September 14, 1972, the two-page application for the subject insurance policy was filled out by Frank Mikolichick, a licensed agent for the Nationwide Life Insurance Company. Apparently Mr. Mikolichick recorded Mr. Annett's answers to the various questions on the application form during business hours at the laundromat operated by Mr. Annett. Mr. Annett signed the application after it was completed, certifying that "all statements and answers on page one and two of this application are complete and true to the best of my knowledge and belief and are correctly recorded as set down." However, the plaintiff testified that her husband did not read the completed application before signing it. Mr. Mikolichick also signed the application, certifying that he had "truly and accurately recorded the applicant's answers."
4. The Annetts had purchased Nationwide automobile, home, and business insurance through Mr. Mikolichick before buying the life insurance that is the subject of this suit. Mr. Mikolichick initiated discussions concerning life insurance when he told the Annetts that he thought they could get more insurance for less money from Nationwide.
5. At the time the Annetts discussed life insurance with Mr. Mikolichick, Mr. Annett had two life insurance policies with the John Hancock Mutual Life Insurance Company. The first policy had been issued on September 8, 1967, and was for $10,000 plus $100 per month for 19 years. The second policy was for $5,600 plus $27,400 of decreasing term insurance. These policies were completely incontestable, except for non-payment of premium, in September of 1972.
6. After discussions with Mr. Mikolichick, the Annetts decided to switch to Nationwide. The Nationwide policy took effect on October 24, 1972. Thereafter, on November 24, 1972, the Annetts terminated the policies issued by the John Hancock Mutual Life Insurance Company.
7. Plaintiff's decedent, William Annett, died on July 13, 1974. All premiums on the subject life insurance policy were properly paid prior to Mr. Annett's death.
8. Subsequent to Mr. Annett's death, the plaintiff herein made full and proper application for the proceeds of the insurance policy and in all other ways complied with the procedures required by the defendant, Nationwide Life Insurance Company.
9. On August 15, 1974, Nationwide advised Mrs. Annett that it was denying any liability under the subject policy of insurance on the grounds that in conducting its post-death investigation it "found that Mr. Annett had an extensive physical history which he failed to indicate on his application for life insurance."
10. Mr. Annett had been receiving regular treatment from Dr. Frank E. McClimans for several years prior to his application for Nationwide Life Insurance. Dr. McClimans' records indicate that Mr. Annett sometimes was nervous, that his blood pressure was sometimes high and sometimes normal, that Mr. Annett had some blackout spells in 1970, and that he may have had some problems with his liver. Dr. McClimans placed Mr. Annett on a 2000 calorie diabetic diet, limited his consumption of alcohol, and gave him medication for his nervousness.
11. There is no evidence that Dr. McClimans told Mr. Annett that he suffered from high blood pressure, diabetes, liver disease, or any other specific ailment. Mrs. Annett testified that she sometimes accompanied her husband on visits to Dr. McClimans, and that she never heard the doctor tell her husband about any particular health problems. Mrs. Annett also testified that her husband never complained about his health.
12. In the years prior to his death Mr. Annett did various kinds of manual labor and often held more than one job. In addition to operating a laundromat, he worked as a rigger at the United States Naval Yard, filled graves at Arlington Cemetery, and did janitorial work at a school. Mr. Annett missed only about four days of work due to sickness in the five years before his death.
13. In November of 1969 Mr. Annett had fallen and was taken to Delaware County Hospital, where a brain scan was ...