83 Pa. Super. 509 | Pa. Super. Ct. | 1924
Argued March 5, 1924. This is an action upon a policy of insurance issued in October, 1919, on the life of Reuben Martin, the plaintiff's husband. By the express terms of the policy, the statements and answers made to the company's medical examiner were made a part of the contract. Amongst the questions and answers endorsed on the policy, and which were made part thereof, was the following: "9. Give names of all physicians who have attended you within the past three years; on what dates and for what complaint. None." The insured died on February 8, 1920. The proofs of death furnished after the death of the insured by the plaintiff to the defendant contained the following questions and answers. The beneficiary was asked: "What physicians have attended or treated the insured during the past three years? She answered: "Dr. Dessen, W. Diamond Ave., Hazleton, Pa." Dr. W.S. Carter, Deputy Coroner, was asked: "Had any other physicians been consulted before you, or was any associated with you during his last illness? If so, give the names and addresses." He answered: "Dr. Dessen, seven months previous." Dr. Dessen was asked: "Were you consulted or did you give treatment for any important *512 ailment prior to last illness? If so, give dates and particulars of disease." He answered: "July 7, 1919, chronic myocarditis." "State fully and particularly any other facts or circumstances within your knowledge bearing on the case." Answer: "Deceased saw me July, 1919. He then had a slight myocardial regurgitation from excess of smoking. I warned him about it and gave treatment." It is conceded that the statement made by the insured in answer to the question relating to medical attendance within the past three years was material to the risk and, if untrue, would avoid the policy. If these statements in the proofs of death were correct, then the insured had been attended by a physician within three years of the time he made his application, and the policy would be invalidated.
At the trial the plaintiff offered the proofs of death for the specific purpose of showing that such proofs had been furnished as a condition precedent to bringing the action. The sole defense raised, as stated by counsel for the defendant in the court below, was that the statement of the insured in his application, that he had not been attended by a physician within three years of the date thereof, was false. The defendant offered in evidence generally the proofs of death, and called Dr. Dessen, who testified that he treated the insured in July, 1919. The recitals of the proofs of death were evidence in favor of the company, but they were not conclusive upon the plaintiff. It was competent for her to explain, qualify or contradict them: Felix v. Fidelity Mut. Life Ins. Co.,
The appellant complains that the evidence was insufficient to sustain the burden thus placed upon the plaintiff; that it was entitled to binding instructions at the *513 trial, and that it was error to refuse to enter judgment n.o.v. In order to sustain the burden cast upon her by the recitals in the proofs of death, the plaintiff testified that Dr. Dessen did not attend her husband at their home at any time, and that he was not away from his house or place of business in July, 1919, for a period sufficiently long to enable him to visit the doctor's office. She and her son and daughter testified to a conversation which the plaintiff had with Dr. Dessen about a month after the proofs of loss had been furnished to the company, in which the doctor stated that he had never attended the insured; that he never treated him for anything and that he made the statement in the proofs of death, as to the cause of death, in order that an autopsy might be unnecessary; that the beneficiary should sue the company and he would be a witness for her. Dr. Dessen testified that the statement in the proofs of death by the coroner, Dr. Carter, that Dr. Dessen had attended the deceased seven months before, was made upon information furnished by him, Dr. Dessen. The assistant superintendent of the defendant company testified that he secured the plaintiff's signature to the proofs of death on the day following the death of the insured, but that the statements of Dr. Dessen and the coroner were not submitted to the plaintiff. The plaintiff testified that she could neither read nor write English and that when she signed the proof of loss, she did not know what it contained. A witness testified that the statement made by the plaintiff in the proof of loss was written by an agent of the company, but that it was not read to her. We all agree that, in the light of this evidence, the question whether the insured was attended by Dr. Dessen within the three-year period prior to the application for the policy was for the jury, and that the learned trial judge left that question to them with proper instructions. He would not have been warranted in holding that the statements in the proofs of death favorable to the company were not sufficiently explained. There is no merit *514 in the assignments which complain of the admission of any of the evidence offered by the plaintiff to explain and contradict the proofs of loss.
All of the assignments of error are overruled, and the judgment is affirmed.
