19 Pa. Super. 228 | Pa. Super. Ct. | 1902
Opinion by
This was an action on a policy of life insurance. The plaintiff made out a prima facie case and rested. The defense was that certain statements of the insured in his application, namely, that he was in sound health, that he had not had disease of the lungs, that he had not been under the care of a physician within two years, and that he had never been under treatment in any. dispensary or hospital, which statements were made warranties, were false. The only matter assigned as error is the refusal of the court to charge the jury that under all the evidence their verdict must be for the defendant.
The physician, who was the principal witness for the defendant, testified that he treated the insured as an out-patient of the Polyclinic Hospital from June 17 until September 30,1899, for disease of the lung. Speaking of the nature of the disease he said: “ There was consolidation of one lung with accompanying signs — I will have to refresh my memory from the book — ■ which, of course was the beginning of pulmonary phthisis.
We have not undertaken to show that the verdict was in accordance with the weight of the credible testimony. Nor is it necessary that we should do so in order to affirm this judgment. It is sufficient to show that the court could not have given binding instructions upon the questions of fact arising upon the testimony without usurping the functions of the jury.
Judgment affirmed.