183 Pa. 504 | Pa. | 1898
Opinion by
On the 30th of April, 1894, the defendant company issued a policy of insurance in the sum of $1,000 on the life of Henry J. Smith who died on September 5, 1896. The insurer now refuses to pay the insurance money on two grounds: (1) The insured was not in sound health “ upon the date of the policy,” and, (2) his answers to certain questions contained in his application for insurance were untrue. The first ground on which payment is resisted is sufficient, if established by competent evidence, to bar a recovery, and so is the second ground, if the answers complained of, although made in good faith by the applicant, relate to some matter material to the risk. “ Statements made by an applicant for life insurance, which are incorrect and untrue, will not avoid the policy, if they are immaterial to the risk, and are made in good faith, and in the belief that they are true ”: Hermany v. Fidelity Mut. Life Ass’n, 151 Pa. 17; Act of June 23, 1885, P. L. 134.
In the case now under consideration there is a positive conflict in the evidence respecting the health of the insured at the time of the issuance of the policy on his life. It is conceded that he had a serious illness in October and November’, 1893, which lasted about seven weeks, and that during that time Dr. D. PI. Donnelly was the physician in charge of his case. Donnelly testified that he then had “ a dilated, weak heart,” and when asked if he had it on April 30,1894, he replied, “ Why certainly; that continued all the time; he never got well of that; nobody can cure that.” Dr. Casey, who was the junior partner of Dr. Donnelly, was not called as a witness, but he made a written statement which indicates that he occasionally visited the patient in the absence of his senior, and thought he bad “neurasthenia and a weak heart.” Dr. Thomas testified
The witnesses to whose testimony we have referred are the witnesses relied on by the defendant company to establish its contention that the deceased was not in sound health when the policy was issued. It will be noticed that Dr. Donnelly, who was the only physician employed by him after his removal to Latrobe, never intimated to him or to any person dependent upon him, or interested in his welfare, that the condition of his heart disabled him from carrying on the business in which he was engaged. Surely if it was clear to his medical attendant that his disability was such as to preclude violent exertion and the carrying or lifting of heavy loads, he should and probably would have been advised of it. Be this as it may, there is direct evidence in the case which negatives Dr. Donnelly’s view of the nature and cause of his illness in October, 1898. Dr. Mc-Conaughy, who was the company’s medical examiner for several years and on whose examination the policy was issued, reported to his employer that the applicant had no “ intermittance or irregularity or undue strength or weakness in heart action,” and that his chances of life appeared to be first class. This report was sustained by his testimony in which he explained the nature and extent of his examination, and that as to the condition of the heart and lungs it was thorough. In addition to and in line with the testimony of McConaughy several witnesses who were acquainted with the deceased and his capacity for labor testified that he appeared to be a strong and healthy man. Surely, therefore, the question whether he was in sound health when he made his application for insurance was for the jury upon the evidence in the case: Dietz v. Metropolitan Ins. Co., 168 Pa. 504; Schwartz v. Metropolitan Ins. Co., 5 Pa. Superior Ct. 285; McGraw v. Same, 5 Pa. Superior Ct. 488.
Did the court err in not holding as matter of law that the policy was forfeited by the answers complained of ? Certainly it was not for the court to say upon the evidence we have referred to that the assured had a dilated and weak heart when
The case was carefully and correctly tried in the court below, and the defendant company has no reason to complain of the result. The assignments are therefore overruled.
Judgment affirmed.