213 Pa. 609 | Pa. | 1906
Opinion by
This was assumpsit brought by the plaintiff, Patrick F. Mc-Caffrey, to recover $1,500 which he alleges is due him as the beneficiary of his wife, Mary McCaffrey, to whom was issued a certificate of membership in the Knights and Ladies of Columbia, the defendant in this action. The certificate is dated December 11, 1903, and for the consideration therein named it was agreed that “ this Order will, upon satisfactory proof of the death of the above named member and upon the surrender and cancellation of this certificate pay to Patrick F. McCaffrey, bearing relation to her of husband, the sum of one thousand five hundred dollars.” Mrs. McCaffrey died August 19,1904. The defendant filed an affidavit of defense in which it is averred, inter alia, that in the application for membership in the order, Mrs. McCaffrey “ made misrepresentations and statements which were untrue in regard to matters material to the risk, in that.she replied, ‘No,’ to question No. 28, which was, ‘Is the applicant pregnant ? ’ thereby making a warranty to the defendant company that she, the said Mary McCaffrey at the time of her making such application for beneficial membership in the defendant order, on the 8th day of December, 1903, was not pregnant, when, as a matter of fact, she was pregnant at the time of making such application, and gave birth to a female child on the first day of May, 1904, and thereafter died from the effects of an illness contracted during the time of her confinement.” The plaintiff took a rule for judgment for want of a sufficient affidavit of defense which, after argument, was made absolute, and judgment was entered against the defendant. The sufficiency of the part of the affidavit of defense above quoted is the only matter requiring consideration here.
The first section of the Act of June 23, 1885, P. L. 134, 1 Purd. 1046, provides : “ Whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application, made in good faith by the appli
A contract of insurance is to be interpreted by the same rules as is any other contract, and must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as such intention is ascertainable: 16 Am. & Eng. Ency. of Law (2d ed.) 927; Yoch v. Home Mutual Insurance Company, 111 Cal. 508. We think it clear that the company in issuing the policy did not regard the pregnancy of Mrs. McCaffrey either at the time of the application or during the life of the policy as material to the risk. A fact is material to the risk when, if known to the underwriter, it would have caused him to refuse the risk, or would have been a reason for his demanding a higher premium : Hartman v. Keystone Insurance Company, 21 Pa. 466. It is not claimed by the defendant company that it does not insure married women. On the contrary, the application and also the constitution and by-laws show that married women are admitted to beneficial membership in the order. Section 32 of the “laws of the supreme council ” provides that: “ All white persons of good moral character, who have arrived at the age of eighteen years, and who have not passed their fiftieth birthday, may be admitted as beneficial members.” And the following questions and answers in the application show that at the time it was made the assured was a married woman: “ Are you married ? Yes. If so, how long? Ten months.” We cannot assume that the pregnancy of a married woman would be regarded as material by the insurer in a beneficial company governed and controlled by such rules and regulations. As said by Judge Shabswood when in the district court of Philadelphia (Lefavour v. Insurance Company, 1 Phila. 558) : “ In insuring the life of a young married woman for the whole term of her natural life, the company must be presumed to know that, in the ordináry course of things, it is a peril she must expect frequently to encounter.” In this case the defendant knew from, the answers in the application that the assured was a young woman, nineteen years of age, and had been married ten months. It follows that the company, when it took the risk, must have ex
In addition to the above consideration we may suggest that if the company' deemed the pregnancy of the assured material and desired to defend against the action on the ground that the answer to the question intended to elicit that information was false, the affidavit should have stated the facts from which the materiality of the question and answer could have been determined by the court. It is well settled that an affidavit of defense is bad which states a conclusion of law without giving the facts from which the court can determine the law of the defense. This affidavit merely avers that the pregnancy' of the assured was “ material to the risk.” This was simply a conclusion. The fact of the assured’s pregnancy would only be material, as we have seen, if being disclosed to the under
The judgment is affirmed.
