27 Pa. Super. 390 | Pa. Super. Ct. | 1905
Opinion by
As shown by the contract upon which this action is based, the defendant accepted John A. Mowry, the plaintiff’s husband, as a member. The policy issued to the insured recites that his occupation is “bridge builder.” The insured had been at work for several years as a bridge builder, and at the time of his death was employed in the erection of an iron bridge. When the treasurer of the defendant came to the plaintiff’s home to settle the loss, he alleged that her husband was insured as a “ wooden bridge builder,” and that according to the company’s classification of risks, she was only entitled to
The case presented is not one of the settlement of a disputed claim, or the compromise of a doubtful right. The allegation is that the agent of the company fraudulently misrepresented the terms of the contract, and that when the Brack contract was produced, he fraudulently and deceitfully read that part of it material to the question which the parties were then considering. It is undisputed that Bruck’s occupation was described in the policy from which the treasurer pretended to read, as “bridge builder,” and the evidence is clear and uncontradicted that he read it as if it were “wooden bridge builder.” The plaintiff had recently lost her husband, she was not in good health nor familiar with business, and the policy not being at hand, was induced by this misrepresentation to accept the agent’s statement of the terms of the policy, and to receive the amount claimed by him to be due thereunder. Such is the story as disclosed by the plaintiff’s evi
On the facts as presented, the plaintiff was not bound to return or tender the money paid before bringing her action. The company lost' nothing by the payment, and was not put in a worse position thereby. It was made because the money belonged to the plaintiff. Upon what principle can it be contended that she is bound to repay to the company that which it admits belongs to her under the contract of insurance ? The case is clearly within the principle of Blair v. Supreme Council, 208 Pa. 262. The offer of evidence contained in the first assignment was properly rejected; first, because it was evidence for the defense and not competent at the time it was offered ; second, because the document offered was not shown to have been that in possession of the treasurer at the time the payment was made to the plaintiff; third, because it presumably contained by-laws or rules of the company or regulations bearing on the contract, and was, therefore, inadmissible, because a copy thereof was not attached to the policy, as required by the Act of May 11,1881, P. L. 20. Argument would be superfluous to show that the “ manual ” of the society, which interpreted the policy and determined the amount due thereon constitutes “rules of the company .... bearing on said contract.”
The several assignments to portions of the charge cannot be
The answers to the plaintiff’s first and second points, set forth in the seventh and eighth assignments of error, are based upon the plaintiff’s prima facie ease, and are fully warranted by the evidence. Having offered the policy and made proof of the circumstances of death of the insured, and of the business in which he was engaged, the plaintiff exhibited a case entitling her to a verdict for the amount payable by the face of the policy, in the absence of any legal defense. As applied to the facts of the case, the answers of the court to plaintiff’s points, as set forth in the ninth and tenth assignments of error, were not erroneous. The language of the points directed the attention of the jury to the evidence. They could not have been led to their consideration as abstract propositions. The jury was satisfied upon evidence, competent and sufficient for the purpose, that the plaintiff was misled and deceived by the representations of the defendant’s agent with reference to the terms of the policy, and upon the record as presented the verdict should not be disturbed.
The judgment is affirmed.