128 Pa. 577 | Pennsylvania Court of Common Pleas, York County | 1889
Opinion,
The rights and obligations of insurer and insured are reciprocal. Each is bound to deal fairly and honestly with the other, in the procurement of the contract for insurance, and any concealment or misrepresentation material to the risk on either side may properly be urged as ground of relief from the contract thus unfairly and fraudulently obtained. The application and policy now before us bristle with the requirements laid upon the applicant. A full disclosure of every circumstance material to the risk is required in writing, and an express covenant that
In the case now before us, the parties to the contract are an insurance company without capital, a mere shell; and a woman desirous to make some provision for her only soil. The representative of the company persuades her, as she testifies, to take a policy upon her life on the mutual side of the company, by telling her that it was in good financial standing in the business world, and had a paid-up capital of fifty thousand dollars. This paid-up capital she was made to understand would in some way provide for the mortuary assessments to be made on the holders of policies on the mutual plan, so that after the payment of her premium and first year’s dues, amounting together to thirty-nine dollars, she would have little or nothing to pay. Neither the agent nor any one else contradicts her in the statement of the representations made to her, but she is sustained by her employer, who testifies that he heard the assurance of the agent made to her more than once, that the company was in good standing and had a paid-up capital of fifty thousand dollars.
Two questions are now raised by the plaintiff in error: First: Did the representations relied on relate to a material subject? Next, did the court err in not sending the case to the jury?
But ought not this uncontradicted testimony to have been submitted to the jury? If this had been asked in the court below, it would have been proper to submit the question of credibility to the jury, but it does not appear to have been asked. If not asked there, it cannot be complained of here. The point submitted to the court by the plaintiff below, shows that the reliance of counsel rested on the question of the materiality of the representations set up, rather than on the credibility of the witnesses by whom they were proved. The point is as follows: “It appearing by the uncontradicted testimony in the case, that the representation which is set up as a bar to the recovery is immaterial, and in no wise affected the financial standing of the company at the time it was made, it was not such a misrepresentation as would amount to a fraud or prevent a recovery, and the court is requested to so instruct the j.ury as a matter of law.” This is in effect a concession of the fact. The issue raised is over its materiality only. Granting the fact to be as alleged by the defendant below, the point asks a binding instruction that it is an immaterial one, and not sfieh “as would amount to a fraud or prevent a recovery.” It is now too late to complain that the facts should have gone to the jury for determination, when no such suggestion or request was made at the proper time or place. It would be unfair to the court and to the defendant to sustain this assignment of error upon this record.
Judgment affirmed.