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ELIZABETH E. MCCLOSKEY v. NEW YORK LIFE INSURANCE COMPANY (10/30/81)

filed: October 30, 1981.

ELIZABETH E. MCCLOSKEY
v.
NEW YORK LIFE INSURANCE COMPANY, APPELLANT



No. 592 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 75-29620.

COUNSEL

John H. Scott, Jr., Pittsburgh, for appellant.

Robert B. Truel, Pittsburgh, for appellee.

Cavanaugh, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.

Author: Hoffman

[ 292 Pa. Super. Page 3]

Appellant contends, inter alia, that it is entitled to a judgment n. o. v. because the insurance policy had been fraudulently obtained. We agree and, accordingly, reverse the judgment of the court below and remand for entry of judgment n. o. v. in favor of appellant.*fn1

In early December, 1974, appellee's husband, Robert J. McCloskey, Jr., applied to appellant for a $25,000 life insurance policy and completed a medical questionnaire designed to reveal any history of various medical conditions including diabetes and heart disease. Mr. McCloskey answered each question in the negative.*fn2 He also submitted to a paramedical

[ 292 Pa. Super. Page 4]

    examination which disclosed that he was overweight.*fn3 Appellant subsequently issued a policy with a special rate classification requiring appellee's husband to pay a premium higher than that of a standard policy. He accepted the policy, and paid the first year's premium. Mr. McCloskey died within a month after the issuance of the policy, whereupon appellee submitted a claim for the face value of the policy. After an investigation, appellant denied appellee's claim and, instead, tendered the initial premium with interest. Appellee rejected that offer, commencing this action in assumpsit for the proceeds of the policy.

At trial, appellant defended on the ground that appellee's husband has fraudulently obtained the policy by misrepresenting his medical condition in the application for insurance. Appellant introduced evidence that Mr. McCloskey did, in fact, suffer from diabetes and that he had suffered a heart attack prior to applying for the policy and that he had undergone a variety of diagnostic tests, a series of x-rays, and a number of electrocardiograms within the period relevant to the application. Although appellee disputed her husband's knowledge of his medical condition, she contended primarily that appellant had not relied upon her husband's misrepresentations when it issued the rated policy. The jury returned a $25,000 verdict for appellee. Following the denial of post-trial motions and entry of judgment, appellant

[ 292 Pa. Super. Page 5]

    took this appeal challenging the denial of its motion for judgment n. o. v.

In reviewing an order denying judgment n. o. v., we must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to appellee as the verdict winner. See e. g., Lynch v. Metropolitan Life Insurance Co., 427 Pa. 419, 423, 235 A.2d 406, 409 (1967). See also Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980). Judgment n. o. v. should be entered when the facts are such that no two reasonable persons could disagree that the verdict was improper. See e. g., Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 880-81 (1967); Bottorf v. Waltz, 245 Pa. Super. 139, 142-44, 369 A.2d 332, 334 (1976). Accordingly, when the lower court would be warranted in giving binding instructions to the jury, see e. g., Connelly v. Ziegler, 251 Pa. Super. 521, 523-24, 380 A.2d 902, 903 (1977); Albright v. Metropolitan Life Insurance Co., 143 Pa. Super. 158, 164, 17 A.2d 709, 711 (1941), or when the evidence is insufficient to sustain a verdict against the losing party, see e. g., Fitzgerald v. McCutcheon, 270 Pa. ...


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