Shafer v. John Hancock Mutual Life Insurance , 410 Pa. 394 ( 1963 )

Dissenting Opinion by

Ms. Justice Cohen :

I disagree with the majority’s view that appelleeinsurer was entitled to a directed verdict under the facts of this case. Since the leading case of Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 186 Atl. 133 (1936), we have held that binding instructions on the question of bad faith are not warranted by a mere showing that a false answer was knowingly made. See, e.g., Allstate Insurance Co. v. Stinger, 400 Pa. 533, 163 A. 2d 74 (1960). In addition, it is required that there also be an intent to deceive on the part of the insured, i.e., an attempt through false answers to secure insurance which would not otherwise be obtainable at the same rates, or at all. In Evans itself, we upheld the denial of a motion for judgment n.o.v. although it was admitted that the insured knowingly concealed that he was suffering from a dislocated vertebra, a condition which eventually caused his death. We stated that the jury could reasonably conclude that the condition was too trivial to report. In Adams v. Metropolitan Life Insurance Co., 322 Pa. 564, 186 Atl. 144 (1936), we upheld the denial of a motion for judgment n.o.v. although the insured knowingly failed to reveal that she had consulted a doctor fifteen times within three months prior to the application. Such evidence was not inconsistent with a finding of a lack of an intention to deceive.

It is true that bad faith will be declared as a matter of law where the insured conceals that he is suffering from a serious illness. See Indovina v. Metropolitan Life Insurance Co., 334 Pa. 167, 5 A. 2d 556 (1939).¹ In our case, however, there is no evidence that the insured was suffering from a serious illness which he would seek to conceal. On the contrary, as the majority points out, there was evidence that “the insured was a vigorous, hard-working individual, who apparently enjoyed excellent health.” Under such circumstances, the question of bad faitb was clearly for the jury.

I would, therefore, reverse the granting of a directed verdict and remand this case to the court below with direction to rule on appellants’ motion for a new trial.

1 In Indovina, the insured concealed that he was suffering from severe anemia.