Opinion
No. 20895
Decided May 31, 1928.
Supreme Court — Affirmances — Determination of question of fact by jury presented by record — Life insurance — False statements as to health of applicant.
ERROR to the Court of Appeals of Stark county.
This is an error proceeding instituted to a judgment of the Court of Appeals of Stark county, which affirmed a judgment recovered against the plaintiff in error for the amount of a life insurance policy, issued on June 30, 1924, upon the life of one Rose F. Scarfone, who died in November, 1924. The second defense of the answer, in substance, alleged that the insured made statements in her application which were willfully false, fraudulently made, and material to the risk, which induced the plaintiff in error to issue the policy. The third defense of the answer alleged that the insured was not in sound health on the date of the issuance of the policy, and set up the terms of the policy, claiming that under them the company was entitled to declare the policy void in case the insured was not in sound health upon the date of the issuance thereof. Evidence at the trial was given tending to show that the insured falsely represented herself to be in good health, whereas she had recently undergone an operation for cancer. Evidence, on the other hand, was given tending to show that the insured had informed the doctor at the time of her examination that she had recently undergone such an operation. Evidence was also given tending to establish that the insured was not in good health at the date of the issuance of the policy, but this evidence was contradicted by other competent testimony. The jury found for the administrator of the estate of the insured.
The case comes into this court upon allowance of motion to certify the record.
Messrs. Pomerene Rodgers and Messrs. Gnau Miller, for plaintiff in error.
Mr. Niles A. Sponseller, for defendant in error.
It appearing that the record in this case presents a determination by the jury of a question of fact, which this court will not review, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
DAY, ALLEN, ROBINSON and MATTHIAS, JJ., concur.
KINKADE, and JONES, JJ., dissent.