134 A. 474 | Pa. | 1926
Horace W. Livingood made request of the defendant company for insurance, and a life policy was issued on August 22, 1921, his wife being named as beneficiary. The signed application set forth that he was in good health, and detailed certain facts as to his prior physical condition, and the medical attendance previously received. The contract stipulated that declarations as to these matters should be understood to be material, it being provided, however, that "all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties." It appeared that two months after the issuance of the policy Livingood became ill, and was then cared for by a physician, other than the family doctor formerly consulted, who diagnosed his case as probably one of tuberculosis, though this was not definitely concluded until January 3, 1922, when he was removed to a hospital for treatment.
Under the terms of the contract, certain payments were made to Livingood while incapacitated for work, and these were continued until May of 1923, when the defendant company, on investigation, was led to the belief that the insured had been suffering from the same disease prior to his application for insurance, which condition had not been disclosed. He died on July 9, 1924, and, payment of the policy having been refused, the wife, named as beneficiary, brought this action to recover the amount thereof. A defense was interposed, based on the averment that the insured had failed to fully describe his physical ailment when he asked for insurance, and, further, had not set forth the names of all of the physicians who had treated him, as represented. The trial resulted in a verdict for the plaintiff, and from the judgment entered this appeal was taken. *131
It is first to be noted that the answers to the questions propounded to the insured were representations and not warranties, and, in the absence of fraud, a proven mistake in the information given did not work a forfeiture of the rights under the contract: Skruch v. Metropolitan Life Ins. Co.,
When the applicant asserts he is in good health, and reasonably believes this to be true, though in fact suffering from some insidious disorder, a recovery may be had. The insured is bound to honestly disclose facts concerning his physical condition, which he knew of, or should *132
have observed, but he is not charged with knowledge of the existence of a latent disease of which, from the nature of things, he could have no exact information: Suravitz v. Prudential Ins. Co., supra; Barnes v. Fidelity M. L. A.,
In the instant case, there was no evidence to support the allegation in the affidavit of defense that Livingood had been treated by another physician than the one named in the application. There was proof that, at a previous time, he had suffered from illnesses which had been cured, and, in addition, it appeared that he had consulted his doctor a year before when attacked with grippe, and later concerning acute colds, resulting in the weakening of his vitality, which facts were not specifically referred to in the application. Two months after the policy was issued, an examination by another physician disclosed the possibility of the presence of a tubercular condition, but this was not definitely determined until the following January, when he was placed in a hospital. The evidence did not justify a conclusion that Livingood was aware of the existence of the disease, and the medical examiner for the company stated that at the time of the examination in August he was not so afflicted. From the fact that it developed later, and indicative symptoms were found in October, coupled with the medical testimony that the disease was progressive in its nature, the jury was asked to infer that the statement made by the applicant, as to good health, was knowingly untrue.
The question was submitted in a charge of which the defendant has no reason to complain. The jury was told that "it is of no importance in this case that the *133 applicant did not know that he had tuberculosis, provided he was actually suffering from that disease and should reasonably have been acquainted with his condition of health," and, further, that if they found that the insured "did make false statements in his application for the risk, or if he did not give his illnesses and the physicians who attended him, then the plaintiff cannot recover." The verdict was rendered for the plaintiff, and a new trial refused.
Appellant now complains because of the refusal to admit certain declarations made by the insured subsequent to the issuance of the policy upon his life, for the benefit of his wife. The learned court below, on the authority of Oplinger v. New York Life Ins. Co.,
Doctor Leh examined the insured on October 24, 1921, and at that time received from him a history of his past physical condition. Therein, the patient stated, amongst other things, that during July and August previously he had suffered "from night sweats." It was proposed to prove this fact as showing a "characteristic symptom of pulmonary tuberculosis," but not that this was a condition uncommonly found in those suffering from any other complaints, or that it indicated, with *134 any certainty, the presence of the disease suggested. The medical examiner of defendant stated the contrary to be true, and that it was not peculiar to tubercular patients. The jury was properly not permitted to guess that the insured was consumptive, because tubercular trouble is accompanied with "night sweats," a condition often discovered among those suffering from various ailments, trivial and otherwise, though appearing with sufficient frequency to be denominated "characteristic." Further, the same witness testified that though the insured would be aware of the symptom, to wit, that he had night sweats, yet he would not know that it indicated tuberculosis, a fact which the doctor was unable himself to determine until months afterwards, after hearing the medical history of the case, and personally examining Livingood. Even if the fact proposed to be shown was indicative of consumption, this would not have justified a verdict for defendant, unless it could be found by the jury that Livingood had reason to believe, from the presence of that symptom, that he had this disease, a conclusion which the doctor himself said was not warranted. For like reason, the same offer, made while Doctor Ader was on the stand, was properly refused.
The third assignment of error is based on the rejection of the statement made by the insured at the time he applied for disability benefits, wherein he set forth that his illness began late in August, 1921. The application for insurance was made on the 21st of that month, and the company issued the policy on the 23d, at which time, the examiner of the company testified, he was in good health. The offer did not propose to show any admission as to the condition of the declarant prior to those dates, but indicated, on the contrary, that the trouble had developed subsequent thereto. It was too indefinite and uncertain to justify a finding that the illness referred to by Livingood antedated the making of the contract, and that the insured was aware of that fact when he applied for the insurance. *135
The three assignments of error are without merit, and, without further discussion, are overruled.
The judgment is affirmed.