20 Pa. Super. 567 | Pa. Super. Ct. | 1902
Opinion by
The plaintiff brought suit to recover on an insurance policy issued by the defendant July 28, 1897, on the life of Andrew Clemens, her husband; in which policy it is provided: “ Third. After two years this policy shall be noncontestable, except for the nonpayment of premiums as stipulated or for fraud.” Andrew Clemens died March 25,1900, and it was admitted in the affidavit of defense offered in evidence on the trial that the plaintiff had “ from time to time paid or caused to be paid eacli and every of the premiums which fell due upon the said policy, and in all other respects complied with the terms thereof.” The defense suggested in the affidavit was limited to two statements : 1. “ In answer to statement two, I have never liad any of the following complaints or diseases,” among which is disease of the heart, and it was averred that at the date of the application and prior thereto the decedent had valvular insufficiency of the heart. 2. That the applicant had averred, “3d. I am now in sound health,” whereas the applicant was not in sound health, but in fact had been drawing sick benefits from the St. Aloysius society of St. Michael’s Church for several months prior to the date of said application and of said policy.
On the trial it was contended that there was not sufficient proof of the identity of Andrew Clemens to entitle the plaintiff to recover, which argument is fully met by the proof of the agent’s certificate that Andrew Clemens was examined by him and was the person to be insured at the time the application was written which was signed in his (the agent’s) presence, and that he recommended the policy to be issued and was convinced of the identity of the person examined with the life proposed,
Under the second defense it was shown that Andrew Clemens had been receiving sick benefits from the St. Aloysius Benevolent Society of the South Side, from February 9, 1897, to a time after the date of the application. The character of this society is not shown in the evidence. Its objects, rules, bylaws or conditions entitling a member to benefits therein do not appear anywhere in the proof, and in the light of the testimony that the society pays benefits for minor and trifling ailments or injuries, and that he was “ well all the time,” taken in connection with the testimony and report of the medical examiner of the defendant company, that he had made a physical examination of the lungs and heart, which were found to be normal, and, at the date of the application was “ of the opinion that said life is in good health; that said life’s constitution is sound, and I, therefore, recommend said life to be accepted at first-class rates,” which report was declared to be true and correct by the same physician, when examined at the trial.
All of the matters indicated in the offers covered by the third and fourth assignments of error were fully testified to by the same witnesses and by others, so that the defendant was not in any way harmed by the rejection ; and, as made, the offers were rightly excluded for the reason that it was not proposed by them to prove the conditions or circumstances under which Andrew Clemens received benefits from the benevolent association, or that he had any ailment or disease contradicting his statement of good health. The most direct testimony as to his condition of health was that “ he had a pretty bad cold and got weak and that the doctor told him not to go back to work any more, that he was not strong enough, he was a kind of delicate man.” This without more is not sufficient to take one out of the ordinary class of good health,’which does not mean absolute perfection, but is comparative. The insured need not be entirely free from every infirmity or from
The evidence was more or less conflicting on all the material questions of fact and was clearly for the jury. The “ noncontestable ” clause in this policy would reasonably imply that a specially careful examination of the applicant would be made. The report of the defendant’s physician who on July 11, 1897, made the examination, after he had carefully read the statement made in the application and had personally inspected the subject, found him free from any organic disease and recommended tins risk to be accepted at first-class rates, was sufficiently supported by other evidence to warrant the verdict in favor of the plaintiffs. We find no error which would justify a reversal, and the judgment is affirmed.