Soltaniuk v. Metropolitan Life Insurance ( 1937 )

Following the filing of an opinion in this case on March 4, 1938, in which we reversed the judgment of the court below and entered judgment in favor of the plaintiff for $42.71, with interest from February 10, 1937, we granted a re-argument "to be limited to the point which appellant avers was not fully argued by him, to wit, whether there was clear, precise and definite evidence that the answer to the 19th question in the medical examination was wrongly entered by the doctor who examined the applicant for insurance."

The re-argument so ordered has been had, and we are still of opinion that the evidence presented by the appellant to show that the defendant's agent, the doctor, incorrectly or fraudulently filled in the answer to the 19th question in the medical examination, wholly failed to sustain the burden resting upon him, to produce evidence not only preponderating, but of a kind, character and quality which is not overstated by the phrase "clear and satisfactory evidence," as laid down in Suravitz v. PrudentialIns. Co., 261 Pa. 390, 398, 104 A. 754. The appellant did not claim that the questions in the application had not been propounded to the insured. He admitted, in effect, that they had, but attempted to show that the doctor had written down different answers from those given by the applicant. The burden of proving this was, therefore, on the plaintiff: Campdon v. ContinentalAssurance Corp., 305 Pa. 253, 258, 157 A. 464.

It is not necessary, in this opinion, to refer again or at more length to the vague and indefinite testimony of the plaintiff which is relied on to establish that the answer written by the doctor to the 19th question was not that given by the applicant. We have read and re-read the testimony carefully and are satisfied that it does not meet the requirement of `clear and satisfactory evidence.' As we said in our former opinion: "It was not of a character to require the defendant to rebut it by calling the physician, and thus submit it as a question of fact to the jury." Its unsatisfactory and unsubstantial nature is further evident from the plaintiff's answer to the following question asked by the court:

"Q. Do you remember the doctor asking him specific questions? Were you sitting down with the man, or with the doctor, when the doctor was asking him question after question, or were you tending to your business?

"A. No, I was just a little bit with the doctor, I wasn't all the time with the doctor, I tended to the business and listened to him, and the doctor asked me, and I say `Yes.' You know, just help out."

The judgment in favor of the defendant is reversed and judgment is entered in favor of the plaintiff for $42.71, with interest from February 10, 1937.