Rigby v. Metropolitan Life Ins. Co.

• Decision Date: 21 April 1913
• Docket Number: 363
• Citation: 240 Pa. 332,87 A. 428
• Parties: Rigby v. Metropolitan Life Insurance Company, Appellant
• Court: Pennsylvania Supreme Court

87 A. 428

240 Pa. 332

Rigby v. Metropolitan Life Insurance Company, Appellant

No. 363

Supreme Court of Pennsylvania

April 21, 1913

Argued February 12, 1913

Appeal, No. 363, Jan. T., 1912, by defendant, from judgment of C.P. Delaware Co., Sept. T., 1911, No. 42, on verdict for plaintiff in case of Bertha S. Rigby v. The Metropolitan Life Insurance Company. Reversed.

Assumpsit on life insurance policy. Before JOHNSON, P.J.

The opinion of the Supreme Court states the case.

The court charged the jury in part as follows:

[Now the question for you, then, will be, looking at the inquiry on the application, which you will have with you, and looking to his answer, we submit to you the question whether or not the answer, the naming of Doctor Harvey -- the omission of him, rather, was material to this risk. If you find that it was, then this plaintiff cannot recover. If you find that it was not material, the answer to that question, and find the other in favor of the plaintiff, then she will be entitled to a verdict of twenty-four hundred dollars and the interest that is due.] (1)

[In a point submitted by the defendant we are asked to say to you as a matter of law that the failure of the insured to name Doctor Harvey as a physician who had prescribed for him is fatal to this plaintiff's case.

Now, we answer that. We say in answer to the inquiry if, in answer to the inquiry as to what physicians had attended him or prescribed for him, his omitting to name Doctor Harvey was material to the risk, the plaintiff is not entitled to recover. Was it material? We submit that question to you.] (2)

[So that we submit to you this question -- it is a fact, that Doctor Harvey was not named by name, and if you find that that omission was material to this risk, then this plaintiff cannot recover. If you find, as we say, that it was not material, then she may. Now, this is a question for you.] (4)

The jury found a verdict for the plaintiff for $2,623.20 and judgment thereon. Defendant appealed.

Error assigned was to various portions of the charge.

The judgment is reversed with a venire facias de novo.

E. H Hall and Arthur G. Dickson, for appellant. -- The question as to other medical attendance was material and should have been so pronounced by the court: United Brethren Mutual Aid Society v. O'Hara, 120 Pa. 256; Mangel v. Ins. Co., 176 Pa. 280; March v. Ins. Co., 186 Pa. 629; Lutz v. Insurance Co., 186 Pa. 527; Murphy v. Ins. Co., 205 Pa. 444; Baldi v. Ins. Co., 24 Pa.Super. 275; Hermany v. Life Assn., 151 Pa. 17.

A. B. Geary, appellee. -- Ordinarily questions of materiality are for the jury, and where the materiality of a statement to the risk involved, is itself of a doubtful character, the determination should be submitted to the jury: Smith v. Metropolitan Life Insurance Co., 183 Pa. 504; Hermany v. Fidelity Mutual Life Assn., 151 Pa. 17; Keatley v. Travelers Ins. Co., 187 Pa. 197; March v. Metropolitan Life Ins. Co., 186 Pa. 629; Lutz v. Prudential Ins. Co., 186 Pa. 527.

Before FELL, C.J., BROWN, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. CHIEF JUSTICE FELL:

The policy of life insurance on which this action was brought was issued October 13, 1909. The insured died September 25, 1910, of cancer of the stomach. The grounds of defense were that incorrect statements had been made by the insured in his application in relation to his previous illness and to medical attendance. It was stipulated in the policy that the statements in the application and the answers to the medical examiner ". . . are correct and wholly true, that they shall form the basis of the contract of insurance if one is issued and that if they are not thus correct and wholly true the policy shall be null and void." Both grounds of defense were submitted to the jury with instructions that under the Act of June 23, 1885, P.L. 134, in order to effect a forfeiture of the policy it should appear that the misrepresentations or untrue statements related to matters material to the risk. The main objection urged to the charge and the only one that need be considered is that the court refused to instruct the jury that the answers of the insured to certain questions in relation to medical attendance were material to the risk and submitted to them the question of materiality.

The insured's regular physician for ten or twelve years immediately preceding his death was Dr. Fronefield. At times when Dr. Fronefield was unable to attend to his patients they were attended by Dr. Harvey. Dr. Harvey testified that the insured had visited him at his office six times between March 15th and May 20th, 1909, for treatment and that "he had dyspeptic symptoms, probably pointing to something towards ulcer of the intestines, very great pain after eating, and coming on when the food would get into the intestines; loss of appetite; poor sleeper; appetite would vary; loss of weight." Dr. Fronefield treated the insured...