Indovina v. Metro. Life Ins. Co.

• Decision Date: 17 April 1939
• Court: Pennsylvania Supreme Court
• Parties: INDOVINA v. METROPOLITAN LIFE INS. CO.

5 A.2d 556

INDOVINA
v.
METROPOLITAN LIFE INS. CO.

Supreme Court of Pennsylvania.

April 17, 1939.

Appeal No. 97, March term, 1939, from judgment of Court of Common Pleas, Allegheny County, No. 2778, January term, 1934; M. A. Musmanno, Judge.

Action in assumpsit by Girolama Indovina against the Metropolitan Life Insurance Company to enforce payment of $5,000 allegedly due on a life policy. Verdict for

5 A.2d 557

plaintiff. From a judgment entered on the verdict, defendant appeals.

Judgment reversed and judgment entered for defendant.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, and STERN, JJ.

D. C. Jennings, of Pittsburgh, for appellant.

Harry Diamond and Harry Pollock, both of Pittsburgh, for appellee.

DREW, Justice.

Plaintiff, Girolama Indovina, brought this action in assumpsit to enforce payment of $5,000 alleged to be due on an insurance policy issued by defendant upon the life of her son, James V. Indovina. Upon due notice and proof of death of the insured, defendant refused to pay and offered to return the premiums paid, claiming that material statements in the application were false and were known to be such by the insured. The case was submitted and the jury returned a verdict for plaintiff. From the judgment entered thereon, following the refusal of the lower court to grant defendant's motion for judgment n. o. v., this appeal was taken.

Defendant bases its claim that there were material misrepresentations in the application upon the following questions and answers therein: "5. Have you ever been an inmate of, or have you ever received treatment at an asylum, hospital, sanatorium or cure? If yes, give date, duration, name of ailment and name of institution." Answer: "No". "13. What physician or physicians, if any, not named above, have you consulted or been treated by, within the last five years and for what illness or ailment? If none, so state." Answer: "None". The insured signed the application on June 6, 1932. He died June 27, 1933. It was admitted by the plaintiff that, contrary to the answers to questions 5 and 13, the insured had been confined in the Mercy Hospital from November 17, 1930, to January 24, 1931, and that during that period he had been treated by Dr. Frost for a severe anemia. Plaintiff sought to avoid the effect of these false statements by showing that the answers were not made by the insured, but were inserted by a Mr. Lemmon, a personal acquaintance of the insured and also the soliciting agent...