BANKERS'LIFE CO. v. Dixon, 1511.

• Decision Date: 02 March 1927
• Docket Number: No. 1511.,1511.
• Citation: 24 F.2d 241
• Parties: BANKERS' LIFE CO. v. DIXON.
• Court: U.S. District Court — Western District of Pennsylvania

24 F.2d 241 (1927)

BANKERS' LIFE CO. v. DIXON.

No. 1511.

District Court, W. D. Pennsylvania.

March 2, 1927.

Leon E. Hickman, Clark Miller, and Gordon, Smith, Buchanan & Scott, all of Pittsburgh, Pa., for plaintiff.

J. M. Henry and W. J. Connelly, both of Pittsburgh, Pa., for defendant.

GIBSON, District Judge.

The plaintiff seeks to rescind two policies of insurance issued to Matthew M. Dixon on February 4, 1924. Each policy was for the amount of $2,500, and had a provision for the payment of $25 per month upon permanent disability, and it was also provided in each that it should be incontestable after two years from issue, except for certain reasons not of present interest.

On September 30, 1925, the insured, Matthew M. Dixon, claimed total disability benefits under the policies. Shortly prior to such claim it had been discovered that the insured was suffering from paresis, a form of syphilis in its tertiary stage. On January 5, 1926, the court of common pleas of Allegheny county, Pennsylvania, adjudged him to be a person of weak mind, and appointed Mary Ellen Dixon, one of the defendants, his wife and the beneficiary under said policies, as guardian of his estate. The permanent disability benefit of $25 per month has been claimed from time to time upon each policy by the guardian. The plaintiff has denied any liability upon the policies, and has refused to pay such claims, but no suit to recover such benefit has been brought by Mrs. Dixon. As the limit of two years for contesting the policies was about to expire, the plaintiff has brought the present action to rescind the policies.

The basis of the action is the allegation that plaintiff was fraudulently induced to issue the policies by false statements made by Matthew M. Dixon in his application for insurance, the application having been made a part of the contract of insurance. The insured, in his application, in effect alleged that he had never suffered from any ailment or disease (a) of the brain or nervous system, (b) of the heart, (c) of the stomach or intestines, or (d) of the skin; had never had (e) rheumatism, gout, or syphilis; had not (f) had any sickness within the preceding five years, and had not consulted any physician for any disease within that period; (g) had never been an inmate in a hospital; (h) had never been injured or disabled in military service; and (i) had never applied for a pension. He further alleged that (j) he was in good health at the time of making the application.

The plaintiff has introduced testimony which fully established the inaccuracy, in varying degrees, of the foregoing answers of the insured. It has been admitted on behalf of the defendants that several of the answers did not reflect the facts, but it is contended that the incorrect answers were not made with intent to deceive and defraud the plaintiff, and counsel for defendants has pointed to the provision in the contract that "all statements made by the insured shall, in the absence of fraud, be deemed representations, and not warranties."

The evidence discloses that the insured, while working as a machinist in the military service, was struck upon the face by a sledgehammer in the hands of a helper, and so lost a large number of his teeth. His service record, offered in evidence, does not show any confinement in a hospital by reason of this accident. At another time he was confined for six days in a service hospital by an attack of tonsilitis, and later he was in the hospital at Camp Dix, New Jersey, for dental treatment for...