Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal by defendant Progressive Life Insurance Company from a judgment in the amount of $8,021.81 in favor of the substituted plaintiff Katherine F. Johnson, executrix of the estate of James L. Johnson. Decedent had instituted suit in his lifetime to recover benefits claimed to be due him under a lifetime disability policy issued by Progressive to him on December 13, 1961. He died before trial and his personal representative was substituted as plaintiff.
Another suit against Metropolitan Life Insurance Company is not involved in this appeal. There was a stipulation of dismissal as to it.
A full recital of the facts is necessary for an understanding of the issues involved.
As noted above, the policy upon which suit was based was issued on December 13, 1961. The insured, James L. Johnson, in his written application for the policy gave answers to questions therein as follows:
"10. Have you ever been treated for, or ever been told that you had any one or more of the following:
13. Have you consulted a physician or other practitioner within the past five years or to the best of your knowledge and belief have you had any illness or disease not mentioned in the answers above?
REMARKS: -- Give full details including names and addresses of attending physicians, dates and reasons when any questions 8 through 13 are answered 'Yes.'
No. 13 -- July 1961 Hydrocele removed surgical. Loss of time about 6-8 weeks. Complete rec. R. Gove, M.D. Brant Beach, N.J.
15. Do you represent that the above answers are true and complete to the best of your knowledge and belief and do you agree (1) that the falsity of any answer in this application shall void the policy, if such answer materially affects either the acceptance of the risk or the hazard assumed by the Company, (2) that the insurance, if issued, shall take effect on delivery of the policy and payment of the first premium during your good health, but only if no change shall have occurred in your insurability since the completion of this application? Yes."
The application was dated December 13, 1961 and signed by Johnson before a licensed agent of defendant insurance company.
On August 5, 1963 Johnson became totally disabled within the terms and meaning of the policy in question. He was then admitted to Temple University Hospital in Philadelphia, suffering from Alzheimer's disease. Thereafter he submitted a claim for permanent disability benefits under the policy. A routine investigation was made by defendant. An examination of the hospital records from the time of his admission revealed to defendant for the first time that Johnson had at the time of his application for the insurance and for several years prior thereto a medical history of coronary insufficiency. Johnson himself supplied this history to the hospital authorities. This history manifested that his answers on the application, as noted above, were false and incomplete. Defendant deemed his representations to be not only false and incomplete, but also such as to have materially affected its acceptance of the risk and the hazard assumed by it. Details thereof are noted infra.
Defendant notified Johnson by letter of October 16, 1963 of its election to declare the policy void, enclosing therewith
a check refunding all premiums paid. The present action followed.
Trial of the cause was before a jury and it returned a verdict in plaintiff's favor. The jury answered by an 11-to-1 vote in the negative the following special interrogatory:
"Did Mr. Johnson have a heart disease including a coronary insufficiency or a cardiovascular illness at any time during the period November 19, 1957, through May 23, 1959?"
In another special interrogatory the jury was asked:
"What is the amount of damages that the plaintiff is entitled to under the policy of insurance -- $5762.31 or $8021.81?"
Its answer, by a 10-to-2 vote, was $8,021.81.
Judgment was entered on the basis of the verdict. Defendant moved for judgment in its favor, notwithstanding the verdict. The motion was denied, as had its earlier motions for judgment in its favor. This appeal followed.
Defendant's main argument is that its several motions for judgment in its favor, during and after the trial, should have been granted on the basis of the insured's material misrepresentations in his application for the policy in question. In ...