205 Pa. 444 | Pa. | 1903
Opinion by
This is an action of assumpsit on an insurance policy, issued by the defendant company on the life of Edward Joseph Murphy, the husband of the plaintiff, who was named as the beneficiary. The application was signed by the insured on November 18, 1899, the medical examination was made the next day, and the policy was issued November 24, 1899. The death proofs state that Murphy died April 5, 1901, of pyelonephritis. The application contains the following questions and answers: “16. Are you in good health? Yes. 17. When were you last attended by a physician? Four years ago. For what complaint? Neuralgia of the face due to a bruise. 23. Have you ever had (answer yes or no to each) .... spitting of blood? No. 24. Have you over had any serious illness? No.” The defense to the action is that the answers to these questions were not true, and were known to be untrue by the applicant, Edward Joseph Murphy, when they were made. It is claimed by the defendant company that at the time the insured signed the application, he was not in good health, had consulted physicians for hemorrhages and spitting of blood, and died subsequently, on April 5, 1901, of consumption. The application contains, inter alia, the following language: “I hereby declare and warrant that all the statements and answers to the above questions, as well as those made or to be made to the company’s medical examiner, are or shall be complete and true, and that they together with this declaration, shall form the basis, and become a part of the contract of insurance hereby applied for. And it is agreed that if any of the said answers be incorrect in whole or in part, then the policy which may be granted in pursuance hereof shall be null and void, and all payments made thereon shall be forfeited to the company. And it is further agreed that the policy herein applied for shall be accepted subject to the conditions and agreements therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first
The case was submitted to the jury by the learned trial judge to determine the truth or falsity of the answers to the questions in the application, with instructions that under the act of 1885, answers which are in fact incorrect and untrue would not avoid the policy if they were immaterial to the risk, provided they were made in good faith by the insured and in the belief that they were true. The verdict and judgment were for the plaintiff, and the defendant company has appealed.
The first assignment complains that the court erred in refusing to permit the defendant, on cross-examination, to ask Dr. Clark, a witness for plaintiff, the following question : “ Would you sa.y that was not a proper treatment for tuberculosis ? ” The treatment referred to was alleged to have been administered by Dr. Atlee prior to the date of the application. The question was properly excluded. The treatment of the disease was not in issue, and, therefore, the question was irrelevant. An affirmative reply to the question would have tended to show that the treatment administered by Dr. Atlee was, in the opinion of the witness, proper for tuberculosis, but it would not have aided the jury in determining whether the patient was suffering with that disease, which was the question at issue.
The second, third and fourth assignments allege error by the court in excluding the answers to questions, on cross-examination, put by the defendant to Dr. Clark, the physician who had examined the insured for the risk, to ascertain whether if the witness had been told by the applicant that shortly prior to the application he had consulted Dr. Atlee for a cough and for night sweats, that fact would have had any effect with regard to passing him as a first-class risk. The only effect of the reply to this question would have been to show the opinion of the witness as to whether, in view of the alleged undisclosed facts, the risk was first class, and whether if the alleged fact
The fifth assignment may be dismissed with the remark that a responsive answer to the question put to the witness would not, in itself, have tended to disclose any existing disease, which, as stated by counsel on argument, was the purpose of the question.
The sixth to the twelfth assignments inclusive and the twenty-second assignment may be considered together. The defense to this action in the court below was, as we have seen, that the insured made false answers to the questions put to him by the medical examiner. For the purpose of establishing this fact, the defendant offered to show that the insured was afflicted with consumption during the latter half of the year 1900, and that he died of that disease in the spring of 1901. The trial court held that the evidence was not admissible; that “ to ascertain whether he had consumption at the time (of the issuance of the policy), to prove that he had consumption in September, 1900, would not be any evidence in this case.” The learned judge, therefore, excluded the testimony offered by the defendant to show the condition of the insured’s health in 1900, and that he subsequently died of consumption; and these assignments under consideration raise the question of the correctness of this ruling. We think the evidence should have been admitted. The defendant had introduced testimony tending to show that during the year 1899, immediately prior to the date of the policy, the insured was afflicted with consumption, and during that time was treated for that disease. It would have been evidence confirmative of this testimony to show that the insured was suffering with, and being treated
The numerous remaining assignments of error may be considered without special reference being made to them separately. The correctness of the questions raised by these assignments requires an interpretation of the Act of June 23, 1885, Purd. Dig. 1046, and its application to the case in hand. The first section of the act is as follows: “ 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 applicant, shall effect a forfeiture or be a ground of de
Hartman v. Keystone Insurance Co., 21 Pa. 466, was an action on a life insurance policy in which it was stipulated, that any untrue or fraudulent allegations, in effecting the insurance should avoid the policy, and that the statements of the assured should form the basis of the contract. Chief Justice Black, delivering the opinion, says: “ The plaintiff can only recover if the declaration of the assured, upon the faith of which the risk was taken, was strictly true in every material part. It will not do to say that this was immaterial. Every fact is material which increases the risk, or which, if disclosed, would have been a fair reason for demanding a higher premium. Nor is it of any consequence that the death was not, in fact, produced by a cause connected with the subject of the misrepresentation. One who falsely declares himself free from consumption cannot effect a valid insurance on his own life, though he died of cholera. A soldier or sailor who warrants himself a merchant, has a void policy, even though he is not slain in battle, or does not perish at sea.” In Wall v. Royal Society, 179 Pa. 355, it is said, Green, J.: “ The general doctrine that in actions on policies of insurance with a warranty of the truth of the-facts, the validity of the contract depends on the truth of the warranty, and that the engagement of the policy holder is absolute that the facts shall be as' they are stated when his rights under the policy attach, is so very familiar and has been so frequently declared, that a mere reference to a few of our modern decisions will suffice.”
The act of 1885 has frequently been before this court for construction. In the recent case of Lutz v. Metropolitan Life Insurance Co., 186 Pa. 527, it was held error to refuse to instruct the jury that “ the applicant and beneficiary in their application having stated and warranted that the insured ‘ never was sick,’ and had no previous ‘ spitting of blood,’ and had consulted no other physican and had ‘ no consumption,’ and the written and printed statement in the proof of death, and the uncontradicted proof and testimony showing that he had spitting of blood, was sick previously, had consumption, and had consulted
Under the interpretation placed upon the act of 1885 by the numerous decisions of this court, it is clear that the statements or answers made by the insured in this case, alleged by the defendant to be false, relate to matters material to the risk. The statements were made in reply to questions asked for the evident purpose of ascertaining the true condition of the applicant’s health at the time of the delivery of the policy and prior thereto. The acceptance or rejection of the risk, as well as the rate of the premium, would depend on the information elicited by the questions. If the applicant was in bad health, it needs no argument to show that the risk to the company would have been increased, and would, therefore, have been rejected or a greater premium would have been demanded. The answers to the other questions were equally material to the defendant company. A truthful response to any of the questions was a prerequisite to intelligent and safe action by the defendant in passing upon the application of the insured.
For the reasons given we are of opinion that the trial court should have instructed the jury that the statements contained in the application, and alleged by the defendant to be false, were material to the risk, and that if they were found to be false or untrue, would avoid the policy.
The trial judge was right in refusing to withdraw the case from the jury, as requested in the defendant’s twelfth point. The evidence submitted by the parties on the questions at issue was conflicting, and, hence, the case was necessarily for the jury.
The defendant, in the twenty-fifth assignment, alleges that the charge was inadequate. If there is any merit in this assignment the error will doubtless be corrected on the next trial.
The judgment is reversed with a venire de novo.