Doll v. Prudential Insurance Co. of America , 1902 Pa. Super. LEXIS 378 ( 1902 )

Opinion by

William W. Porter, J.,

The two policies of life insurance in suit contain, inter alia, three provisions, upon the effect of which hangs this controversy. The first clause promises to pay “ the sum of money as provided in the third column of said schedule.” The third column provides, in one policy, “ Sum insured on the above terms and subject to correction for misstatement of age, $110.” The second policy is the same in this clause save thatthe amount in figures is $115. Section twelve of both policies makes them incontestable after three years. The defense set up in the affidavit is that the insured made a mistake in giving her age, and that the company should now pay only the amount of insurance purchased by her premiums based on her true age, the correction being made pursuant to the provision made in the “ third column.” The court below entered judgment for the plaintiff, holding that the company was liable for the amount indicated by the numerals in the policies, and that to permit a correction as required by the defendant would be to violate the clause providing for incontestability. This was error. Far from being an attack on its validity or obligatory force, the defense is plainly in affirmance of the contract. If mistake in age can be proven, the amount payable, as contended by the defendant, will be arrived at by a method and on a basis explicitly agreed upon by both parties to the writing. This construction does not nullify the clause providing for incontestability.

Tf the misstatftmentm£"u?-jgfere set up as a breach of warranty, or as violating- the contract whereby the company would be relieved from all contractual obligation, a different question would be presented. Here the defendant company says to the plaintiff in effect: “You have a valid policy; we are liable under it according to its terms. Those terms require the amount to be paid by us to be determined on the basis of the true age of the insured. This amount we stand ready to pay.” The learned judge of the court below misconstrued some of the expressions in the opinion in the case of Brady v. Prudential Ins. Co., 168 Pa. 645, upon which he based his judgment. The true effect of that decision is to sustain the conclusion indicated by what has been said herein, to which conclusion the case of Starck v. Union Central Life Ins. Co., 134 Pa. 45, is additional support.

The judgment is reversed and a procedendo is awarded.