24 Pa. Super. 275 | Pa. Super. Ct. | 1904
Opinion by
This action was brought by an administrator upon a policy of insurance issued in 1895 upon the life of Dr. Francis Rizzo. Dr. Rizzo died in September, 1897, of angina pectoris.
By the express terms of the policy itself, the answers and statements contained in the application were made warranties and a part of the contract. Amongst the conditions, indorsed on the back of the policy, subject to which it was issued and accepted, and which were made part of the contract, were the following: “ 3. If any statements contained in the written and printed application herein referred to be not true
To rebut this prima facie defense the plaintiff offered and was permitted to testify, that his statement in the proofs of death above quoted was based, not upon knowledge of his own, for he had none, but upon information he received from Dr. •Leone; also to show by his own testimony and that of other witnesses, that after this suit was brought Dr. Leone admitted that his statement as to having attended Dr. Rizzo professionally prior to the date of the application was untrue, but for the sake of his. own professional reputation he would have to stick to it. The admission of this testimony is the subject of the first four assignments of error.
In North American Life & Accident Insurance Company v. Burroughs, 69 Pa. 43, the beneficiary in her affidavit, furnished as part of the proofs of death, stated that the injury happened while the deceased was unloading hay, when he accidently strained himself; the affidavit of the physician stated that death was. from an accident by exertion in hauling in hay ; the proof on the trial was that the injury was from a blow from a pitch fork while hauling in hay. In the disposition of the question whether this variance between the preliminary proofs and the evidence given on the trial would prevent recovery, the Supreme Court, per Williams, J., said: “It seems to us that under the terms of the policy the plaintiff .is entitled to recover if she has given sufficient preliminary proof of the injury though she may have unwittingly ascribed it to a wrong cause. It is not such a variance as should be regarded as fatal.” In Lebanon Mutual Insurance Co. v. Kepler, 106 Pa. 28, the trial court refused upon request to charge, that the plaintiff having made his proofs of loss, and delivered the same to the company’s agent, was precluded from recovering a greater sum
But it is argued that the claimant is not a competent witness to contradict his own sworn statement contained in the proofs of death. It is to be noticed that his affidavit to the proofs of death was to the best of his knowledge and belief. We are unable to conclude that he was thereby precluded from testifying that his answer to the question as to prior illness of the insured and as to the attendance therefor of a physician was based exclusively on information coming from what he had a right to suppose was a reliable source. A perusal of the questions propounded by the company shows that many of them must in ordinary cases be answered by an administrator upon belief. He is of course bound to the exercise of good faith, but he is not required to warrant the absolute correctness of his answers; nor did the plaintiff in the present case warrant it. To hold that it was competent to vary or even contradict them by proof of mistake but that it was not competent for the person who made it to explain how it occurred would be a harsh rule and not in accordance with the authorities. Whether his testimony in explanation of his prior statement was to be credited was for the jury, but we entertain no doubt as to its admissibility.
It was objected further that it was not competent to con-. tiradict- the statement of Dr. Leone by proof of his subsequent
It follows that the assignments which relate to the refusal to charge that the fact that the insured had had an attack of angina pectoris prior to the date of the application was conclusively established by the proofs of death must also be overruled; Under the evidence this was a question of fact for the jury; but the defendant was entitled to have them plainly instructed as to the materiality of the above quoted statements in the application and as to what their verdict should be in case they found them to be untrue. The act of 1885 provides against the effect which formerly attached to questions and answers set forth in the application, which often were of no consequence as to the risk.involved but which the courts were obliged to uphold simply because they were warranties. But it is well settled by recent decisions that the act has no application in cases where the answer was false and related to some matter material to the risk. Where it is doubtful whether the matter was material, the question of materiality must be submitted to the jury, but where it was palpably and manifestly material to the risk it is the duty of the court so to charge. The answers under consideration belong to the latter class. “ As the act of 1885 made no change in the law where the matter in question was material to the risk, the duty of the court to pronounce upon this subject was the same after as before the act. . . . As it was always the duty of the court before the act of 1885 to determine the materiality of the question and answer in cases which were perfectly manifest and free from all doubt, and the act makes no change in the law in such cases, so the same duty remains since its passage: ” Lutz v. Metropolitan Life Insurance Co., 186 Pa. 527; March v. Metropolitan Life Insurance Co., 186 Pa. 629; Smith v. Northwestern Mutual
In his submission of the case to the jury the learned judge treatéd the supplemental statement of Dr. Leone furnished in compliance with the company’s demand for a more' complete statement' on his part, as part of the' proofs of death, and was Warranted in so doing by the evidence ; therefore refusal of defendant’s ninth point was not reversible error.
Judgment reversed and venire facias d& novo awarded.