12 Pa. Super. 250 | Pa. Super. Ct. | 1900
Opinion by
This was an action of assumpsit upon a policy of insurance upon the life of one Timothy Fogarty, issued by the defendant in March, 1895. The defendant pleaded non assumpsit.
On the trial the plaintiff offered in evidence the letters testamentary issued to her under the will of Timothy Fogarty, and testified that the policy in suit was issued to him, that he died on December 5, 1895, at her house, and that proofs of death were delivered to the company. In her cross-examination she asserted that he was the person examined for the insurance by the company’s physician, and gave the particulars of the examination. She then rested her case.
The policy provided that “ no obligation is assumed by this company previous to the date hereof, nor unless on said date the insured is alive and in sound health.” As the evidence shows, one of the defenses was that the Timothy Fogarty who died in December, 1895, was not in sound health when the policy issued. In support of this defense the company proved that, at the date of the policy and up to the time of his death, he
In addition to these acts and declarations of Timothy Fogarty himself, the defendant showed by the testimony of Dr. Diehl, a surgeon in the United States navy, stationed at the United States naval hospital at Philadelphia, that the deceased was under his observation and treatment from September 18, 1894, until November 30, 1895; that during all that time he was suffering from chronic pulmonary consumption, and that when he was removed from the hospital on the date last mentioned, which was less than a week before his death, he was in the last stages of that disease, and had been confined to his bed for several days.
When the application for insurance was received it was placed in the hands of the company’s physician, with directions to examine the applicant. He testified that he made an examination of a man introduced to him by Mrs. Quirk (the executrix, sole legatee and plaintiff in the present action), as Timothy Fogarty; that the examination was made at her residence ; that it was a careful, painstaking, rigid examination, and that the man he examined was in sound health. He further testified that the man struck himself upon the chest, upon both the right and the left side, and said: “ Nothing wrong with these lungs, Doc. ? ” To which the doctor answered: “Why do you ask me ? ” To which the man replied that he just wanted to know. The witness further testified: “ I thought it rather peculiar and I examined him again, and found the man a first-class risk in every respect, and so reported to the company.” The plaintiff, upon cross-examination, and her daughter, called by her in rebuttal, corroborated the testimony of Dr. Walker as to what took place at the examination.
We assume, without argument, that in an action upon a life insurance policy the burden of proving that the person who died was the person assured rests on the plaintiff, unless the defendant admits the fact or is precluded from denying it by its plea, which, of course, it is not precluded from doing where the general issue is pleaded. When the evidence is all in, and the case is submitted for determination, there can obviously no longer be any question as to the burden of proof, so far as that term is concerned with the order of production of evidence: 5 Am. & Eng. Ency. of Law (2d ed.), 21. The question then is as to the preponderance of the evidence. If at this stage there be conflicting evidence as to an essential matter of fact in issue and in the judgment of the jury the preponderance is not in favor of the party who alleged the affirmative, they ought to decide that question of fact against him, and it is the duty of the court to so instruct them, if requested. By the testimony of both parties to this issue the person who was examined for this insurance and upon whose life the company supposed it was issuing this policy was a strong, finely made man in sound health. This is an undisputed fact asserted by the plaintiff and admitted by the defendant. But if the testimony introduced by the defendant was to be believed, the deceased was not a man of that description at the time the policy issued, but, according to his own declaration and the admissions implied from his acts, was suffering from disability caused by “ disease of throat and lungs,” and, according to the testimony of the physician under whose observation and treatment he had been, was suffering from chronic pulmonary consumption which he had had for at least six months. This evidence went, not only to the question whether there was a breach of the condition of the policy sued on, but also to the question arising upon the plaintiff’s own case, namely, the identity of the man examined for the insurance. Whether or not he was the same person who died hr December, 1895, was clearly a question for the jury. They might solve it by discrediting the testimony introduced by the defendant and crediting that of the plaintiff,
Nor was there any error in the instructions complained of in the first and fourth assignments. Their correctness, if there was sufficient evidence of fraud to go to the jury, cannot be questioned. The complaint is that there was no such evidence. In this we cannot concur with the plaintiff’s counsel. True, it is not enough to charge fraud and prove in support thereof slight circumstance only. To be of any avail it must be clearly proved: Morton v. Weaver, 99 Pa. 47; Mead v. Conroe, 113 Pa. 220; Jones v. Lewis, 148 Pa. 234. But fraud may be, and often is, proved by circumstantial evidence. As was said in the case last cited: “ It is not necessary that the evidence of collusion shall be conclusive: Rogers v. Hall, 4 W. 359; Confer v. McNeal, 74 Pa. 112. Nor is it essential that the fraud or colLusion appear by positive proof; it may be shown by such facts and circumstances as would warrant a presumption of its existence: Brinks v. Heise, 84 Pa. 246; Lowe v. Dalrymple, 117 Pa. 564.” If the evidence introduced by the defendant in the present case was to be credited, the conclusion of fact from the facts proved was almost irresistible, that this policy could not have been obtained on the life of the Timothy Fogarty, who died in December, 1895, without the perpetration of a fraud, and that a fraud was perpetrated. At all events, the question was for the jury and it would have been error to withdraw it from their consideration. These assignments are overruled.
The third assignment of error is so framed as to leave it in doubt what particular part of the instruction quoted is complained of. It seems, however, from the brief of counsel that it is that part, in which, in response to a question put by one of their number, the jury were told that they should take the policy “ as it reads.” As there Avas no ambiguity in the particular provision referred to — nothing requiring further explanation than had been given in the general charge — this was an adequate, and a perfectly proper answer to the question. Taking' question and answer together, the effect of the instruction
The ease was well tried, and the verdict was fully warranted by the testimony. We would not be justified in overturning it, even if we were so disposed, which we are not.
The judgment is affirmed.
