256 Pa. 61 | Pa. | 1917
Opinion by
Plaintiff as beneficiary sues to recover the proceeds of two life insurance policies issued by defendant company to plaintiff’s father, Barnett Feinberg, pursuant to application made seven months previous to the latfer’s death, which occurred December 13, 1911. The application for the two policies was signed in blank by Feinberg in the presence of defendant’s agent, Avho took pencil memoranda of the answers to the questions and subsequently in his office filled out the signed blank. The medical examiner’s report containing a list of questions relating to the occupation, habits and health of the insured, was made out by defendant’s examiner, who inserted the answers made by applicant to the various questions. This report was signed in Hebrew by applicant in the presence of the examiner. The application and report contain certain statements by the applicant to the effect that he had not theretofore been rejected by a. company to which he applied for insurance, and that he had not suffered from either of the various diseases specified, or from any diseases not specified, and that he had not consulted nor been under the care of a physician within five years previous to the date of the application. The policies were issued, and defendant, after the death of the insured, refused-payment, alleging that several of the answers in the application and physician’s report, were false, and gave notice of its determination to rescind the policy. Upon defendant refusing to pay, plaintiff brought this action to recover the aggregate amount of the two policies and defendant in defense alleged the policies were void from the beginning because of fraudulent representations made by deceased. The trial judge
Each policy by its provisions “constitutes the entire contract between the parties” and omits reference to the application or the representations made therein. The sole reason for refusing payment is the alleged fraudulent representations, by which defendant was induced to issue the policy. In setting up this defense the burden of proving fraud was of course on defendant and to meet this burden it offered in evidence the application for insurance and examiner’s report and followed that evidence by the testimony of witnesses to the effect that-.the answers to certain questions contained therein were not in accordance with the facts. Having done this by uncontradicted testimony defendant contends its request for binding instructions should have been affirmed.
The weak link in defendant’s chain7of proof for this purpose is found in the fact of applicant’s inability to either read or write the English language, and that his answers to questions were written in the application and medical examiner’s report- by representatives of defendant- — the * examining physician in the case of the medical report and the agent in the case of-the application. In neither case does it appear that the answers' inserted in the blank forms were read over to the applicant and with respect to the application the uncontradicted testimony is that the paper was signed in blank by applicant and filled in the following day at the agent’s
The alleged false statements concerning the appli- ' cation of deceased for insurance in other companies, are
In the present case deceased did not see the application after signing the blank form, and did not read nor have read to him the contents of the examiner’s report. Neither was the application made part of the policy. Under all the circumstances, we conclude the case was a proper one for the jury.
Annexed to the affidavit of defense is a copy of the application which was a necessary part of defendant’s case as the alleged fraudulent representations were made in connection therewith. A rule for judgment for want of a sufficient affidavit of defense was taken for the reason that the application, not having been attached to the policy, is incompetent evidence under the provisions of the Act of May 11, 1881, P. L. 20, requiring all life and fire insurance policies containing a reference to the application of the insured or the by-laws of the company as forming a part of the policy or contract, to have attached to them correct copies of such application and by-laws, otherwise they shall not be considered a part of the policy. The rule was discharged, and at the trial of the case plaintiff’s objection to the application, when offered in evidence by defendant, was overruled. The question raised by this ruling is an interesting one; as the verdict was however in favor of plaintiff, notwithstanding the admission of the evidence, and the appeal is by defendant, the question is not before us, and, in view of the conclusion reached as to the merits of the appeal, expression of an opinion thereon is deemed unnecessary.
The judgment is affirmed.