Fickes v. Prudential Insurance Co. of America ( 1936 )

The insured in his application stated that he had not been attended by a physician during the previous three years. This statement was admittedly false. Doctors testified that they had attended him and their testimony was not contradicted. Under these circumstances, following our ruling in other cases, the policy was void and binding instructions should have been given for defendant. False statements in an application for life insurance as to the prior attendance of physicians are material to the risk and where the fact of attendance is uncontradicted, the question of liability on the policy is one of law and not for a jury's determination: New York Life Ins. Co. v. BodekCorp., 320 Pa. 347. Questions in an application for life insurance relating to the attendance by physicians are material to the risk. Their materiality should not be determined by the jury. The act making such answers representations has nothing to do with such questions. Where an insured stated that she had not been attended by a physician and the uncontradicted evidence shows that the answer was false, it is the duty of the trial court to direct a verdict in favor of the insurance company: March v. Metropolitan Life Ins. Co., 186 Pa. 629; Lutz v. Metropolitan Life Ins. Co.,186 Pa. 527.

Under the Act of May 17, 1921, P. L. 682, 40 PS section 757, the falsity of any statement in the application bars the right to recover if it materially affects either the acceptance of the risk or the hazard assumed by the insurer. False statements in an application for a life insurance policy as to the employment of other physicians than those named are material representations: New York Life Ins. Co. v. Brandwene, 316 Pa. 218; Rigby v. Metropolitan Life Ins. Co., 240 Pa. 332. In NewYork Life Ins. Co. v. Brandwene, we said, page 223: "It is conceded by defendants that under our decisions (Rigby v.Metropolitan Life Ins. Co., 240 Pa. 332; Livingood v. New YorkLife Ins. Co., supra [287 Pa. 128]; Koppleman v. CommercialCas. Ins. Co., 302 Pa. 106; Applebaum v. Empire State LifeAssurance Soc., 311 Pa. 221), such inaccurate statements in an application for a life insurance policy, as to the employment of other physicians than those named, are to be deemed material representations."

In my opinion, binding instructions for defendant should have been given. Where this is so, it is error to grant a new trial and we will enter judgment for defendant: Walters v. FederalLife Ins. Co., 320 Pa. 588. In Fornelli v. P. R. R. Co.,309 Pa. 365, 369, we said: "The facts and the law of the case were fixed; they showed no liability on the part of defendant, and on them the court should not have done otherwise than direct a verdict for defendant. In ordering a new trial under these circumstances, the court below was guilty of a clear and palpable error of law. . . . Under such circumstances an order granting a new trial will be reversed."

For the reason stated, I dissent from the affirmance of the grant of a new trial.