20 Pa. Super. 61 | Pa. Super. Ct. | 1902
Opinion by
1. F. W. Glacier, a witness for the defendant, was called to testify to a conversation which he had with George Arnold, the insured, after the application for the insurance had been made and the policy issued. The identity of George Arnold, so far as the knowledge of the witness went, depended upon the information which he had from Mrs. Kitting, the mother-in-law of the plaintiff. He found the person, with whom he had the conversation and whom he regarded as George Arnold, sitting in front of the house of the woman who gave him the information in regard to the identity of George Arnold, and in conversation with him he found him very hard of hearing. The insured was admittedly hard of hearing. The testimony was received and submitted to the jury but in submitting it the court said: “ Mr. Glacier said some man, whom he did not know but whom he was told was the assured, told him that he was doctoring for over a year. There is no evidence that the person with whom he was talking was George Arnold, the assured ; therefore his evidence is of no value.” If the testimony was competent, the jury was to determine as to its value. If incompetent for the reason that there was no evidence that the person with whom the witne’ss was talking was George Arnold, it should have been ruled out. We think there was evidence of Arnold’s identity. Personal identity must depend almost entirely upon tradition. If the witness had asked the person with whom he talked if he was George Arnold and the reply had been in the affirmative, this would have been evidence of the same character as that upon which the witness relied, because we must all ultimately rely upon tradition for all that we know as to our personal identity. “ Common reputation in a family connection as to who are members of the family is ad
2. In order to secure the issuance of a policy by the defendant, the insured made a statement containing the following extracts : “ I hereby apply to the Metropolitan Life Insurance Company, through its intermediate branch, for $500 insurance.
“ To induce the said company to issue said policy and as consideration therefor, I warrant and agree, on behalf of myself and of any other person who shall have or claim interest in any policy issued under this application, as follows:
“2. I have never had any of the following complaints or diseases: . . . . disease of liver .... spitting or raising blood. . . .
“ 3. I am now in sound health. . . .
“ 4. The following is the name of the physician who last attended me, the date of the attendance and the name of the complaint for which he attended me .... Dr. Reber, Painterville, Pa.; January, 1899; three ribs broken.
“ 5. I have not been under the care of any physician within two years, unless as stated in previous line.”
On behalf of the defendant, Dr. J. H. Reber testified as follows : “ Q. Did you or did you not treat George Arnold, Ihe assured, during the spring of 1899 and, if so, when and for what complaints? A. I did. Q. When did you treat him? A. I treated him in February, 1899, for, some broken ribs. Q. How many visits did you make ? A. Two, I believe. Q. Did you treat him after that in the spring? A. Why, yes ; a week or two afterwards he came to my office and complained and I gave him some medicine. B. What did you treat him for then ? A. He had a cold aud complained about his liver. Q. What other trouble did you treat him for? A. Why, stomach; he had a sore stomach. Q. Before that, within two years from May, 1899, did you not treat him ? (Objected to and objections overruled.) A. Yes, sir, he came to my office at different times and got medicine. Q. What dates and in what year? A. Why, in 1898,1 guess it was. Q. What time in 1898? A. I couldn't say. Q. Have you any books that would help you? A. Yes. Q. Look at them, if you can ascertain from them. A. (Witness refers to memorandum books.) He was at my office on
Dr. W. M. Baker, called for defendant, testified: “ Q. Did you ever prescribe for George Arnold in the spring of 1899 ? A. Yes, sir. Q. What time? A. It was between the 17thand 20 bh of April. Q. To the best of your recollection what was the disease or trouble for which you prescribed? (After some discussion.) A. I don’t remember positively what I did treat him for, but I think I treated him for stomach and liver trouble. I only think so ; I am not positive; to the best of my recollection, it was stomach and liver trouble, but I am not positive.” And later: “ Did you give him anything else than quinine ? A. Yes, sir, I gave him two or three different kinds of medicine, but I don’t remember what kinds they were.”
If the testimony of these witnesses was'to be believed, the insured evidently did not, in his application, give such full and explicit answers to the questions therein asked as he was bound to do under his warranty. The court, in its charge and in the answers to points, endeavors to minimize the diseases for which the insured sought medical advice and prescriptions by saying, among other, things: “We do not recall any evidence which tends to show that the liver trouble for which Drs. Reber and Baker prescribed, was a permanent disease of that organ or such a complaint which would affect the general health of the assured (evidently meaning insured),” and again: “ As he heretofore
Judgment reversed and a new venire awarded.