18 Pa. Super. 573 | Pa. Super. Ct. | 1902
Opinion by
1. By the express terms of the policy offered in evidence by the plaintiff, the application was made part of the contract. What purports to be a copy of the application was attached to the policy. The offer was not restricted to any part of the
2. The first assignment of error raises the question whether proofs of death are evidence against the plaintiff as binding admissions of the facts therein stated. Under the Pennsylvania authorities it is clear that while they are admissible in evidence, the plaintiff is not estopped at the trial by anything stated therein by others. Such statements are open to explanation and even to contradiction by the plaintiff: Lebanon Mutual Fire Ins. Co. v. Kepler, 106 Pa. 28 ; Fisher v. Fidelity Mut. Life Association, 188 Pa. 1; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Benseman v. Prudential Ins. Co., 13 Pa. Superior Ct. 363, 371. It is not clear that in the ruling complained of the court intended to hold otherwise. Other rulings made during the course of the trial show, that the learned trial judge did not hold that the proofs were of such binding force as to preclude the plaintiff from showing that the statements in the certificate of the attending physician were incorrect. It is unnecessary to discuss this assignment further.
3. The defendant’s counsel urge that in Pennsylvania, where an applicant for insurance warrants that he has not been attended by any physician other than as stated in his application, if the applicant has in fact been attended by a physician other than as stated, for a disease not mentioned in the application from which he dies, there can be no recovery upon the policy. Conceding for present purposes the correctness of the foregoing proposition of law, does it follow that the defendant was entitled to binding instructions? We think not. The answers
Judgment reversed and venire facias de novo awarded.