62 Pa. Super. 153 | Pa. Super. Ct. | 1916
Opinion by
The plaintiff is an Italian, illiterate in the English language and unable to read in that tongue. His testimony was delivered through an interpreter. The verdict establishes that an agent of the defendant company, one Switzer, solicited him to take out an insurance policy in his company. The agent produced the requisite blank application and asked the plaintiff such questions as he deemed necessary and himself wrote down what purported to be the answers of the plaintiff to the questions propounded. The plaintiff was, as stated, unable to read the application as it was filled up. The agent did not read it to him, but at the request of the latter, the plaintiff signed it in good faith, believing that it truly exhibited the real state of facts. The agent forwarded the application to the company and in due time the plaintiff received his policy. After having regularly paid his monthly premium for several months, he fell sick and for a period of time was disabled as a result of that sickness. By reason of this disability the defendant became liable to pay him a stipulated sum, if any liability at all accrued to it under the circumstances.
It may be conceded that in the construction of some of the covenants affecting the rights of the parties in insurance contracts, the decisions of the Supreme Court of Pennsylvania are not entirely in harmony with those in some of the other jurisdictions. But we think it clear, under our own decisions, it has become the well-settled law that where an application for a policy of insurance is declared to be a warranty of the truth of the facts therein stated, if it be filled out by an agent of the company, the plaintiff is not precluded from showing by testimony that, either through the fraud or mistake of
In each of these cases the policy issued on the strength of a written application or description of the buildings to be insured and their uses, in which the assured expressly warranted the truth of every statement in his application or description. In each the paper containing the warranty had been actually filled up by an agent of the company. In each the company defending was able to establish by admission or proof a breach of the warranty. In each the assured was permitted to prove that he had in fact answered truthfully all questions propounded to him by the agent, so that if the application or description did not exhibit the facts, that result was to be charged to “the fraud or mistake of a knavish or blundering agent,” and not to. the assured who had relied on the honesty and capacity of the agent and signed in perfect good faith.
In the very late case of Survitz v. Prudential Insurance Co., 244 Pa. 582, Mr. Justice Elkin, in an elaborate opinion reviews the whole question. Although in that particular case he was dealing with a material misrepresentation and not a warranty, he goes over the entire subject. After citing many of the cases to which we have referred and some others, he thus states the conclusion to be drawn from the.decisions: “In some of the cases cited the covenant was that of warranty, but even in those cases this' court held that where the agent of an insurance company omits a material portion of an answer of the applicant, or incorrectly writes down the answer as made, either intentionally or negligently, in a suit upon the policy the applicant may show by parol what the real
Here then is a long and unbroken line of cases which very clearly establish that in Pennsylvania a plaintiff, under the circumstances attending the signing of the application in this case, may, notwithstanding the war-' ranty, or any provision on the subject in the policy, prove by parol that he answered truly, and that in such respects as the application may fail to correctly state the facts, the consequences are to be charged to the fraud or the blunder of the agent, and the company may not escape liability by reason of the alleged breach of warranty.
It might have been supposed this doctrine was so well settled it would hardly be necessary to produce in detail this line of authority, and we should not have attempted it had it not been for the case of Rinker v. Ætna Life Insurance Co., 211 Pa. 608. There again there was an application which was made a warranty. The company established a breach of the warranty and rested its defense thereon. When the plaintiff, in rebuttal, undertook to show the truth of the matter, her offer of testimony was met with the objection that her statement contained no averment of any fraud, accident or mistake in the application that had been signed, and therefore proof of such facts was inadmissible under the pleadings. The learned trial court rejected the evidence in rebuttal and a verdict for the defendant followed. It is clear from an examination of the report of that case the judgment of the Supreme Court primarily rested on the proposition that in the state of the pleadings there was no error in rejecting the offered evidence. That question does not arise in the case before us because the amended statement of claim distinctly avers the fraud or mistake of the agent in preparing the application. Whilst it is true the judgment of the court can be easily sustained
Whilst we are obliged to admit that the language of the opinion in Einker v. The Insurance Company, supra, gives us pause, and is calculated to create some doubt as to the exact status of the law on this question, we feel warranted — after a careful examination of the later case of Suravitz v. The Insurance Company, and in the light of the long established policy of our courts dealing with this question — in holding that the learned judge below was right in receiving the evidence of the plaintiff and in
But one other matter requires our attention. After the plaintiff’s disability had occurred and the consequent liability of the defendant had arisen, the company sent the plaintiff a check returning the premiums he had paid. The plaintiff did not use this check until after the company, in its affidavit of defense, had tendered a judgment for that amount as due and owing by it. Under advice of counsel the plaintiff then accepted and cashed the check as a payment on account. We are unable to perceive how this in any way prejudiced the defendant or how it could preclude the plaintiff from prosecuting his action. There was nothing on the face of the check to indicate that it must be accepted in full satisfaction of what the plaintiff claimed, if accepted at all. The learned judge therefore was right in holding that it interposed no barrier in the way of the plaintiff proceeding for the balance of his claim. It is also true that the docket entries disclose no formal refusal of the defendant’s motion •for judgment n. o. v. Undoubtedly the better practice would require that such motion be formally acted on so that the aggrieved party by an exception might bring the whole of the evidence, &c., upon the record. But the assignment of error raising this question is not pressed by counsel, as no practical good could come from sending the case back merely upon that ground. For all practical purposes the refusal of a new trial and the entry of a judgment on the verdict may be considered tantamount to a refusal of the motion for judgment n. o. v.
Judgment affirmed.