Clum v. Guardian Life Ins. Co., 4070.

• Decision Date: 07 September 1938
• Docket Number: No. 4070.,4070.
• Citation: 24 F. Supp. 396
• Parties: CLUM v. GUARDIAN LIFE INS. CO.
• Court: U.S. District Court — Western District of Pennsylvania

24 F. Supp. 396

CLUM v. GUARDIAN LIFE INS. CO.

No. 4070.

District Court, M. D. Pennsylvania.

September 7, 1938.

Abram Salsburg, of Wilkes-Barre, Pa., for plaintiff.

O'Malley, Hill, Harris & Harris, of Scranton, Pa., for defendant.

JOHNSON, District Judge.

This is an action of assumpsit brought by Elizabeth B. Clum, the beneficiary under a policy of life insurance, issued upon the life of Anson R. Kintner, deceased, by the defendant, the Guardian Life Insurance Company of America.

The plaintiff made out a prima facie case, which the defendant sought to defeat on the ground that the insured had obtained the policy through material, false and fraudulent representations as to his condition of health and previous medical treatment. The statements alleged to be false and fraudulent are that the insured had never had any disease of the heart or any suspicion of such disease, that the insured had not consulted any physician or taken treatment within five years of the application, and that he had not been a patient in any institution or hospital for treatment of any physical ailment.

The application was made on February 8, 1935, and the policy was issued on March 5, 1935. The insured died on February 28, 1936, of acute heart disease.

The case was tried before the court and jury, and a verdict returned in favor of the plaintiff in the amount of $11,200, the face value of the policy with interest.

The defendant moved for a new trial and for judgment non obstante veredicto on a point of law reserved with reference to binding instructions. These motions are now before the court.

The defendant has filed twenty-six reasons for a new trial. The first five reasons allege in substance that the verdict was against the law and the evidence, thus raising the same question as the motion for judgment on the point of law reserved, to wit, whether the defendant is entitled to judgment on the whole record, notwithstanding the verdict of the jury. This question will be considered before passing upon the other reasons given for a new trial.

The statements made by the insured in the application are by the terms of the policy specifically made representations and not warranties. Consequently, the defendant to be entitled to judgment must establish that the insured's statements were materially false and that insured knew this at the time he made them. Suravitz v. Prudential Life Ins. Co., 244 Pa. 582, 91 A. 495, L.R.A.1915A, 273; Evans v. Penn Mutual Life Ins. Co. of Philadelphia, 322 Pa. 547, 186 A. 133. Furthermore, the evidence is to be considered in the light most favorable to the plaintiff. Hegarty v. Berger, 304 Pa. 221, 155 A. 484.

The defendant sought to establish that the statements in the application were false and fraudulent by the testimony of Dr. Plummer, who testified that the insured consulted him on August 15, 1934, and on several occasions thereafter, that he gave the insured a careful physical examination, and came to the conclusion that he was suffering from heart disease. Dr. Plummer further testified that the insured consulted other doctors, and that on October 1, 1934, he entered the New York Hospital where he stayed for four days, during which time another complete physical examination was made which confirmed Dr. Plummer's diagnosis. Dr. Plummer also testified that the insured was told of the result of these examinations before the date of the application and that treatment was prescribed for him. The plaintiff testified that the insured had led a very active life up to the time of his death and was apparently in good health.

The defendant relies entirely upon the oral testimony of its own witnesses. The testimony as to the insured's apparent...