McDonald v. Liberty Beneficial Ass'n, 80 Pa. Super. 32

80 Pa. Super. 32 | Pa. Super. Ct. | 1922

Opinion by

Keller, J.,

Tbe only errors assigned in this appeal are the refusal of tbe court to affirm defendant’s point for binding instructions and enter judgment in its favor non obstante veredicto. We are satisfied that tbe case was for tbe jury and tbe assignments must accordingly be overruled.

(1) The by-laws of tbe defendant association provided that “benefits will not be payable when sickness or death occur..'____for [from] consumption contracted during tbe first year of membership.”

Tbe policy of insurance, or benefit certificate, in suit was issued November 12, 1920. Tbe insured died December 14, 1921. Tbe statement of tbe attending physician, forming part of tbe proofs of death offered in evidence by tbe defendant,' set forth that death was due to pulmonary tuberculosis, and that be bad attended tbe deceased from December 6, 1921, to December 14, 1921. The physician in attendance before him testified at the trial that he had attended the insured from October 6, 1921, until about two weeks before his death, when he himself took ill and had to relinquish the case; that he had diagnosed his disease as catarrhal bronchitis, a complication of influenza, and had treated the case accordingly; that, in his opinion, the insured did not have tuberculosis when he stopped attending him. He also testified that it was possible for a man to die of pulmonary tuberculosis on December 14th, and yet not have tuberculosis two weeks prior to that time; and his evidence was not contradicted. In this state of the evidence it was certainly for the jury to find whether the insured had contracted consumption or tuberculosis during the first year of his membership in the defendant association.

(2) The application for insurance contained the following questions and answers:

15-a. What is the present condition of health? Good.

b. When last sick? Month Year Never.

c. Of what disease? None.

At the trial the physician, who first attended him during his last’ illness, was called on behalf of the defendant and testified that he had treated the insured about once a year, for several years previous to 1920, for colds. It was not shown that at these times the insured was confined t'o bed, and the doctor said his health was good in November, 1920, when the policy or certificate was issued. The insured was not asked when he had last consulted a physician. The term, sick, is a somewhat elastic one and may mean, ill, affected with disease, unsound, affected with nausea, etc. In England it is generally confined to, nauseated. One suffering from a simple cold would not likely be called sick, and we cannot say, as a matter of law, that he would be guilty of misrepresentation if he failed to report it as a sickness. From its context in the application it was probably used as the antithesis of “healthy” or “in good health,” and our Supreme Court has held that the term “good health” is comparative and does not mean absolute perfection; that slight troubles, temporary and light illness, etc., do not' disprove a warranty of good health; that a “temporary or slight cold in a man of usually good health would not constitute unsound health”: Barnes v. Fidelity Mutual Life Assn., 191 Pa. 619, 622, 623. In any event the credibility of the witness was for the jury: Baer v. State Life Ins. Co., 256 Pa. 177, 184.

The Mai judge left it as a question of fact for the jury to find whether the applicant’s statements were untrue, and affirmed defendant’s seeond point as follows: “If the jury finds from the evidence that the answers of Crawford McDonald in his application for membership in the defendant association as to illness prior to becoming a member of said association, were untrue, then the plaintiff is not entitled to recovery in this case and your verdict must be for the defendant.” This was, in our opinion, as far as he could go under the decisions. See Barnes v. Fidelity Mutual Life Assn., supra; Baer v. State Life Ins. Co., supra; Baldi v. Metropolitan Life Ins. Co., 18 Pa. Superior Ct. 599, 610; Clemens v. Metropolitan Life Ins. Co., 20 Pa. Superior Ct. 567, 572; Csizik v. Verhovay Sick Benefit Assn., 60 Pa. Superior Ct. 466, 474; South Side Trust Co. v. Eureka Life Ins. Co., 74 Pa. Superior Ct. 566, 572.

With this disposition of the case it is unnecessary for us- to pass upon the question whether the defendant is really a life insurance company masquerading as a beneficial association, (Marcus v. Heralds of Liberty, 241 Pa. 429), and the admissibility in evidence of the application for insurance, since no copy theréof was attached to the policy.

The judgment is affirmed.