24 Pa. Super. 293 | Pa. Super. Ct. | 1904
Opinion by
So far as the terms and conditions of the policy in suit, the statements in the application therefor, the statements in the proofs of death, and the evidence given on the trial in explanation of the latter statements, are concerned, this case does not differ essentially from the case of Baldi v. Metropolitan Life Insurance Co., in which we have this day filed an opinion. As these matters are quite fully recited and the questions raised by the first five assignments of error are discussed at length in our opinion filed in that case, it is unnecessary to go over that ground again. These assignments are overruled.
The question raised by assignments six to twelve inclusive is thus stated by appellant’s counsel: “ When defendant had
The remaining assignments relate to the charge and answers to the points submitted by the defendant. After correctly stating the defense upon which the defendant relied the court said: “ Now, it is admitted that Rizzo died of angina pectoris in 1897. Was Rizzo attended by Dr. Leone, and did he have an attack of angina pectoris four years before that? Those are the two important questions in this case, and it is for you to decide them under, the evidence. If you find that this is so, or that either of these allegations is so, I instruct you that, your verdict must be for the defendant. If you find that they are not so, your verdict should be for the plaintiff for the amount of the policy, together with interest.’’ This was a clear and concise statement of the issue and the law applicable to it. The accompanying remarks of the learned judge would seem to show, although he did not say so in so many words, that in his opinion the law relative to warranties in life insurance policies is unduly harsh and ought to be amended by legislative enactment. This would better have been omitted. But this digression was immediately followed
The defendant must have known, or at least had reason to believe, from what had occurred on the. former trials of this and the Baldi case, that the correctness of Dr. Leone’s statement in the proofs of death would be assailed. - His testimony in accordance with that statement, if believed by the jury, would have completely rebutted the testimony offered by the plaintiff and established a complete defense. Therefore we cannot say that the comments of the court, quoted in the“ thirteenth assignment, upon defendant’s omission to call him as a witness or to take his testimony by deposition or commission constituted reversible error. See Ginder v. Bachman, 8 Pa. Superior Ct. 405; Wills v. Hardcastle, 19 Pa. Superior Ct. 525, and the cases therein cited. Therefore this assignment is not sustained.
But it is to be borne in mind that by the express provision' of the policy, his statement, which constituted part -of the proofs of death, was “ evidence of the facts therein stated -in behalf of but not against the company.” It -was still evidence to be submitted to the jury, notwithstanding .the evidence introduced by the plaintiff to impeach it. The defendant based its defense very largely upon it. Prima facie it was intrinsically stronger evidence of the facts recited in it than
In speaking of the effect of the plaintiff’s statement in the proofs of death as an admission against interest, it was not wholly irrelevant to call attention to our ruling when the case was here before that it could not be construed as a conclusive admission that the insured had an incurable disease prior to the date of the policy. But in that trial the question was whether the insured was in sound health at the date of the policy; on this trial the question was whether there was a breach of the warranty in the application as to prior illness and treatment therefor by a physician. It was scarcely an adequate presentation of the law applicable to the plaintiff’s statement as evidence upon the latter issue to quote our ruling as to its inconclusiveness as an admission of the incurableness of the ailment for which he had been treated by Dr. Leone, without calling the jury’s attention to its function as evidence that he had been so treated.
We pass now to the twenty-first assignment in which the error alleged is that the charge and answers to the points — all of which are quoted at length — were inconsistent.
But there is another inconsistency which it seems to us is more serious and of which the defendant has a right to complain. In defendant’s third point the court was asked to charge that if the insured consulted Dr. Leone in 1893 or 1894 for angina pectoris, or what was considered to be angina pectoris, then a material warranty contained in the application was untrue, the policy was void and the verdict should be for the defendant. The court affirmed this point and was right in so doing. So in' the general charge the court plainly and correctly instructed the jury as follows : “Was Rizzo attended by Dr. Leone for any illness of sufficient gravity to require the attendance of a physician ? If so, he should have communicated that fact to the company, and, if he did not communicate that fact to the company, he failed in a material warranty, and the guardian of his minor children cannot recover here.” But the force of this plain statement of the question and the law applicable to it was very much weakened by the suggestion that accompanied it that Rizzo himself was a physician, that he was on most friendly terms with Dr. Leone, that they consulted together, and that they were friends. “ Even if he did see Dr. Leone about this matter,” said the court, “ he might not have regarded that as a consultation or an attendance; he might not have paid any attention to what he said. You will have to consider that aspect of the case, with the other testimony that is before you.” So far as we have been able to discover this last suggestion rests on pure conjecture; it was erroneous to present it as a mode of reconciling the statements in the application with the statement of Dr. Leone that he had attended the insured for an attack of angina pectoris and had given him inhalation of amyl nitrate therefor, this being the usual treatment for such an attack. Further in concluding his charge the learned judge said ¡
Judgment reversed and venire facias de novo awarded.