Russ v. Metro Life Ins. Co.

• Decision Date: 29 January 1930
• Docket Number: 319-1929
• Citation: 98 Pa.Super. 353
• Parties: Russ to Use v. Metro Life Ins. Company, Appellant
• Court: Pennsylvania Superior Court

98 Pa.Super. 353

Russ to Use v. Metro Life Ins. Company, Appellant

No. 319-1929

Superior Court of Pennsylvania

January 29, 1930

Argued November 12, 1929

Appeal by defendant from judgment of M. C., Philadelphia County-1928, No. 414, in the case of Rayfield Russ, to the Use of Edwin C. Emhardt, v. Metropolitan Life Insurance Company.

Assumpsit on a policy of life insurance. Before Bluett, J.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiff in the sum of $ 671.70 and judgment thereon. Defendant appealed.

Error assigned, among others, was the refusal of the defendant's motion for judgment non obstante veredicto.

Arthur G. Dickson, for appellant, cited: Panopoulos v Metropolitan Life Insurance Company, 96 Pa.Super. 325.

Robert P. Shick, for appellee. -- Where there is an ambiguity in the conditions of the policy of insurance, its provisions will be construed most strongly against the insurer and in favor of the insured: Krebs v. Phila. Life Ins. Co., 249 Pa 330; Miller v. National Casualty Co., 62 Pa.Super 417.

Before Porter, P. J., Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ. Opinion by Linn, J.

OPINION

Linn, J.

This suit is on an insurance policy on the life of Eva J. Russ. The policy was dated December 27, 1926; a few months later, March 30, 1927, the insured died of chronic pulmonary tuberculosis. Her husband, Raymond Russ, the beneficiary, furnished proofs of death, and on April 14, 1927, assigned his interest in the contract to the use-plaintiff. The insurance company conducted an investigation lasting some months and declined liability on the ground of breach of condition, and, in discharge of the contract, tendered $ 7.50 -- the premium at 50 cents per week for 15 weeks -- but the tender was declined. Suit followed, with verdict and judgment for the use-plaintiff. Defendant complains of trial errors and of the refusal of its motion for judgment n. o. v.

The policy provided: " This policy constitutes the entire agreement between the company and the insured and the holder and owner hereof. Its terms cannot be changed, or its conditions varied, except by the express agreement of the company evidenced by the signature of its president or secretary. Therefore, agents (which term includes also managers and assistant managers) are not authorized and have no power to make, alter, or discharge contracts, to waive forfeitures . . . . If . . . . (2) . . . . the insured . . . . has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease, or chronic bronchitis or cancer, or disease of the heart, liver or kidneys, unless such . . . ., medical attention or previous disease is specifically recited in the 'space for endorsements' on page 4 in a waiver signed by the secretary, . . . . then, in any such case, the company may declare this policy void and the liability of the company in the case of any such declaration or in the case of any claim under this policy, shall be limited to the return of premiums paid on the policy, except in the case of fraud, in which case all premiums will be forfeited to the company." No waiver of prior medical attention or disease was endorsed on the policy.

The uncontradicted evidence is that in 1925 the insured was a patient in Philadelphia General Hospital suffering with pleurisy, enlarged spleen, enlarged liver, pulmonary tuberculosis and tertiary syphilis. During her treatment there, about a pint of amber colored fluid was withdrawn from the pleural cavity. She left the hospital, one of the physicians testified, before she was cured. The syphilitic condition was proved by a blood test and by a Wasserman test. The failure to have that medical attention recited on the policy constituted a breach of the condition contained in the policy and required binding instructions for the defendant (Panopoulos v. Metropolitan Life Insurance Company, 96 Pa.Super. 325; Skruch v. Metropolitan Life Ins. Co., 284 Pa. 299; Connell v. Life Ins. Co., 16 Pa.Super. 520) or judgment n. o. v.

That result is not affected by the assignment of the insurance to the use-plaintiff; he has no better right to recover than his assignor. He took the assignment in the following circumstances. About two weeks after the death of the insured, the beneficiary appealed to the use-plaintiff for aid. The use-plaintiff testified that he then telephoned to defendant's manager, Stokes, in Germantown, Philadelphia and that Stokes asked him to advance money for the funeral expenses of the insured, saying that " he [Stokes] would be responsible for the claim for her burial; " that Stokes told him that " there was some delay [in paying the insurance] only on account of the fact that this woman had died so soon after the policy was created. But he said 'the reports are in and you will absolutely be paid' . . . ." There was correspondence, received in evidence, between the use-plaintiff and the defendant, some of it written to Stokes and some of it to the home office in New York. In the letters of the defendant it is stated that the claim is in process of investigation; in one of them it is said that the delay is due to difficulty in finding one of the doctors who treated the insured during the...