Schware v. Home Life Ins. Co. of America

• Decision Date: 31 January 1939
• Docket Number: 135-1938
• Citation: 3 A.2d 949,134 Pa.Super. 53
• Parties: Schware, Admr., v. Home Life Insurance Company of America, Appellant
• Court: Pennsylvania Superior Court

3 A.2d 949

134 Pa.Super. 53

Schware, Admr., v. Home Life Insurance Company of America, Appellant

No. 135-1938

Superior Court of Pennsylvania

January 31, 1939

Argued December 15, 1938.

Appeal from judgment of C. P. Lehigh Co., April T., 1937, No. 110 in case of Allen E. Schware, Administrator of Estate of Minnie Schware, deceased, v. The Home Life Insurance Company of America.

Assumpsit. Before Iobst, P. J., without a jury.

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

Findings of fact and conclusions of law filed and judgment entered for plaintiff. Defendant appealed.

Errors assigned, among others, were various findings and conclusions.

Judgment reversed with a procedendo.

Arthur S. Arnold, with him Butz, Steckel & Rupp, for appellant.

Stanley V. Printz, with him Robert G. Kleckner, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Keller, P. J.

This was an action of assumpsit on a life insurance policy, tried by agreement of the parties, by the court without a jury, under the Act of April 22, 1874, P. L. 109.

As the procedure prescribed by the Act of 1874 was not followed and the opinion of the court below shows a misconception of the issues involved, we are obliged to reverse the judgment.

The Act of 1874 provides that following the trial the court shall file with the prothonotary its decision in writing, and if requested by counsel for either party ^[1] shall state separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law. Notice of such decision is directed to be given forthwith by the prothonotary to the parties or their attorneys, and if no exceptions are filed thereto within thirty days after service of such notice, judgment shall be entered by the prothonotary; if exceptions are filed within thirty days, the court or the judge who tried the case in vacation may, upon argument, order judgment to be entered according to the decision previously filed, or make such modifications thereof as in right and justice shall seem proper.

In the present case the court entered judgment for the plaintiff simultaneously with the filing of its findings of fact and conclusions of law, so that no opportunity was given the defendant to present its exceptions to the court's findings of fact and conclusions of law and argue the same before the entry of judgment. This was contrary to the course prescribed by the statute and in view of the court's discussion of the case in its opinion filed with its findings and conclusions we are not satisfied that it was harmless to the defendant.

The action was on an industrial policy of life insurance. A copy of the application for insurance was not attached to the policy and hence under section 318 of the Insurance Company Law of 1921, P. L. 682, which was a substantial re-enactment of the Act of May 11, 1881, P. L. 20, the application could not be received in evidence, on behalf of the company, nor considered a part of the policy contract. But the policy contained certain conditions, subject to which the policy was issued and for breach of which the company was authorized to declare the policy void, to wit:

"CONDITIONS

"If, (1) the Insured is not alive or is not in sound health on the date hereof; or if (2) before the date hereof, the Insured has been rejected for Insurance by this or by any other company, order or association, or within two years before the date hereof has been attended by a physician for any serious illness, disease or complaint, or has applied for diagnosis or treatment to any hospital, sanitarium or institution of any kind engaged in the treatment of disease or for the restoration of health, or, before said date, has had any pulmonary disease, or chronic bronchitis or cancer, or disease of the heart, liver or kidneys, unless such rejection, medical or institutional attention or previous illness, disease or complaint is specifically recited in the 'space for endorsements' on page 4, in a waiver signed by the Secretary; or if (3) any policy on the life of the Insured hereunder has been previously issued by this Company and is in force at the date hereof, unless the number of such prior policy has been endorsed by the Company in the 'space for endorsements' on page 4 hereof, (it being expressly agreed that the Company shall not in the absence of such endorsement be assumed or held to know or to have known of the existence of such prior policy, and that the issuance of this Policy shall not be deemed a waiver of such last mentioned condition), 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."

It is unnecessary for us to decide whether these are true conditions precedent, as in Youngblood v. Prudential Ins. Co., 109 Pa.Super. 20, 165 A. 666, where the provision was, "this policy shall not take effect if the insured die before the date hereof, or if on such date the insured be not in sound health, etc."; see also Landy v. Phila. Life Ins. Co., 78 Pa.Super. 47, 50; Harrisburg Trust Co. v. Mutual Life Ins. Co., 278 Pa. 255, 258, 122 A. 292; Vanhorne v. Dorrance, 2 U.S. 304, 2 Dall. 304, 316, 28 F. Cas. 1012, 1 L.Ed. 391; Prudential Ins. Co. v. Kudoba, 323 Pa. 30, 186 A. 793; Restatement of Contracts, sec. 250 (a) and (b). They were, in any event, conditions upon which the contract, by its written terms, was dependent: Connell v. Metropolitan Life Ins. Co., 16 Pa.Super. 520; Panopoulos v. Metropolitan Life Ins. Co., 96 Pa.Super. 325; Russ v. Metropolitan Life Ins. Co., 98 Pa.Super. 353; Robinson v. Metropolitan Life Ins. Co., 99 Pa.Super. 152; at least, to the extent that they were not modified by, or in conflict with, the Act of July 19, 1935, P. L. 1319. The burden was on the defendant of proving sufficient facts to justify the company in declaring the policy void: Connell v. Metropolitan Life Ins. Co., supra, p. 529.

The court below, in stating the facts, said: "An affidavit of defense was filed alleging false answers to questions appearing in the application for insurance"; and in its discussion of the case treated it as if the case were concerned with false representations in the application for insurance. The affidavit of defense made no reference at all to the application for insurance or the falsity of the applicant's answers therein. They were not even mentioned. They could not be presented as a defense to the policy, for a copy of the application was not attached to the policy. By way...