McGraw v. Metropolitan Life Insurance

5 Pa. Super. 488 | Pa. Super. Ct. | 1897

Opinion by

Reeder, J.,

This was an action upon an insurance policy for $108, upon the life of Adam Neal. The defenses were two — first, that'he was not in sound health at the time of the issuance of the policy; second, that the plaintiff being a niece of the insured, not living with him, had no expectation or benefit from the continuance of his life, and therefore had no insurable interest. The error complained of is in submitting the case to the jury.

The question as to whether Adam Neal was in sound health or not was a question of fact which was fairly submitted by the court below to the jury, after the careful caution that “ if the defendant has satisfied you at the time Adam Neal was insured' he was not in sound health, then the plaintiff could not recover, because that is part of the policy, part of the agreement and understanding — that is the issue.” The testimony as to his physical condition was contradictory, a number of witnesses testifying upon the one side that he could not have been in sound health at the time of the making of his application and the issuance of his policy; the other witnesses testifying that he was in sound health. This raised an issue of fact which could only be determined by a jury, and it was fairly submitted to them under proper instructions, and a verdict found in favor of the plaintiff.

It is alleged by the appellee that the second contention— namely, that the plaintiff had no insurable interest in Adam Neal’s life was for the first time urged in this court. This we have no method of determining. The appellant has not printed the pleadings and we have no opportunity therefore of examining them without going to the record. It, however, appears from the record (so far as the same is printed) that this proposition was not urged so far as we can discover in the court below, and is first heard of here. The charge of the court, in the first paragraph, states that the whole issue is as to whether Adam Neal was of unsound health or not when the policy was issued. There was no evidence offered by either side on this question. It appears, however, incidentally in plaintiff’s testimony, that her father died when she was two and one half years old, that her mother married again, and that Adam Neal, the insured, who was her uncle, had raised her and had been a father to her all her life, that she had lived with her uncle until her marriage, and since her marriage next door to him, where he resided with his sisters, and that the plaintiff always helped to support them.

Upon this evidence the case was properly submitted to the jury, and they would have been justified in determining the question in her favor: Carpenter v. U. S. Life Ins. Co., 161 Pa. 9.

But there is another and more vital objection to the appellant’s contention in this regard. The entire defense must be set out in the affidavit, and no evidence will be heard outside of that, is one of the provisions of the rules of court of Allegheny county; and, while the affidavit of defense is not printed, as it ought to have been, in the appellant’s paper-book, yet an examination of the record itself discloses that this allegation is no part of the defendant’s affidavit, and, therefore, it would have been improper for them to have introduced evidence upon that question at the trial in the court below without an amendment of the affidavit of defense, and, of course, the question therefore is not properly raised here.

Judgment affirmed.