261 Pa. 390 | Pa. | 1918
Opinion by
This is an action on a policy of insurance issued by defendant company on the joint lives of Jacob Suravitz and Mary, his wife; the latter died and the former brought the present suit, wherein he recovered a verdict upon which judgment was entered in his favor; defendant has appealed.
There is no dispute about the fact of Mary Suravitz’s death, or that plaintiff furnished satisfactory proofs thereof. The contest turns upon two controlling defenses: (1) Alleged misrepresentations, in the application for the policy, by plaintiff and his wife of the latter’s physical condition. (2) Fraudulent substitution of another woman, in good health, for plaintiff’s wife, at the
Since there have been three trials of the'present cause already and it now becomes our duty to order a fourth, we shall discuss the several assignments of error more elaborately than might otherwise be necessary, hoping in this way to aid in bringing the case to a final determination.
A man named Glinsky testified that he knew Mary Suravitz and actually saiv her undergo examination by the insurance company’s doctor. It was alleged in an affidavit filed by defendant, in support of a motion for a new trial, that, after verdict, this witness had stated his testimony in regard to the examination of deceased was false. A hearing was fixed to take depositions, and Glinsky, while he admitted having stated what was averred in the affidavit, swore all his evidence at the trial was correct and true. We agree with the court below that the man under discussion is “nota very reliable person” ; and, considering the trial judge’s belief that “Glinsky was an important witness for the plaintiff,” that tribunal might well have refused to enter judgment on the verdict. However, in view of the fa'ct that the testimony in question is merely cumulative, we are disinclined to hold the refusal of a new trial an abuse of discretion constituting reversible error. The first assignment is overruled.
Consideration of the second assignment calls for preliminary notice of certain relevant facts and principles of law. The application attached to the policy contains • questions addressed to Mary Suravitz and answers thereto, inter alia, as follows: “Q. Are you in good health? A. Yes.” “Q. Have you, so far as you know, ever had any serious illness or disease? A. No.” If believed,' the evidence produced by defendant, professional and otherwise, shows rather conclusively that, when these
The contract in suit provides that the answers in the application are representations, not warranties; therefore, these issues, among others, arose: (1) Did Mrs. Suravitz have heart disease? (2) If so, did she know it when she made the representations to the insurance company concerning her health?
When the company put in its testimony tending to show that Mrs. Suravitz had the disease in question, this evidence, together with the answers upon the application, made out a prima facie case for defendant, which, unreplied to, if believed by the jury, would have entitled it to a verdict. As already shown, plaintiff undertook to an
The^assignment in hand complains of an answer made by the trial judge to one of defendant’s points for charge, which' deals with the character of evidence received, as follows: “If the jury find that Mary Suravitz, when the application in this case was made, was suffering from a form of heart disease incurable in its nature, and that she knew she was suffering from this disease, but stated that she was in good health, then the verdict must be for the defendant; and the burden is upon the plaintiff to satisfy the jury by clear and satisfactory evidence-that the answers were incorrectly written by the agent in the ■application. Answer: This is affirmed, In other words, we say to you, in connection with affirming this point, that, the plaintiff alleging that the answers in these two applications are not correctly written down, the burden is upon the plaintiff to establish that fact by the fair preponderance of the testimony, or weight, as we call it. ■ That is stated in this point and we affirm it.” Thus it will be seen that, while the above request has to do with the quality of evidence required for the purpose therein stated, the answer departs from that field and deals with the subject of the ultimate weight of the evidence, not its kind or character. Not only is the answer guilty of this material departure, but it informs the jury in unmistakable language that the request was in
As stated by Rice, P. J., in Taylor v. Paul, 6 Pa. Superior Ct. 496, 501, “To instruct the jury that a fact must be established' by The weight of the “evidence,’ is not equivalent to saying that it must be established by ‘clear and satisfactory evidence’”; defendant requested and was entitled to the latter instruction, which it did not-get. On the contrary, the answer, as phrased, practically nullified the whole purpose of the request as drawn; while in form an affirmance, in substance and effect it was almost tantamount to a denial thereof. To say the least, the answer was not responsive to the request (Waynesboro M. F. I. Co. v. Creaton, 98 Pa. 451, 453); and, in a case such as the one before us, this was harmful error; therefore, the second assignment is sustained.
As to the allegations that “plaintiff substituted another woman, not his wife, and introduced her to the [insurance company’s] doctor as his wife, and caused her, instead of his wife, to be examined by the doctor,” the trial judge instructed that the burden was upon defendant to prove these charges; the latter, in the third assignment, contends this was error, and that, in the first instance, the burden was on plaintiff to prove Mary Suravitz was in fact the person examined.
Of course, where the fact is contested, the burden is always on the plaintiff to show that the person whose death is proved was the person insured. Here, however, it is not contended either that Mary Suravitz was not the person who died or was not the person insured, but that, when the medical examination was made, plaintiff deliberately substituted another woman in her place. This is an affirmative defense of’fraud upon the insurance company,. involving the allegation of- the existence of specific facts, which defendant assumed the burden-of proving by a preponderance of clear and satisfactory evidence.
The burden of establishing facts by such character of
In other words, applying the rules just stated to a case like the present, if the evidence to sustain defendant’s charge of inpersonation be sufficient in kind and character to carry a reasonable degree of conviction, then the burden of adducing counter-proof shifts, and, after plaintiff presents his testimony upon the issue, it is for the jury to say which side the preponderance of evidence favors, determining the point in controversy accordingly. On the other hand, if the proof of impersonation is insufficient in character, or does not carry conviction, then there is no shifting of the burden, in any sense of that term; for a failure to sustain'the burden originally assumed results, and the finding on the point involved should be against defendant. Finally, should the jury find the evidence in equilibrium, its decision ought to be against defendant; for, again, the latter has not sustained the burden of proof (Burford v. Fergus, 165 Pa. 310, 314; 10 R. C. L. 896 et seq.; also see quotation from Rice, P. J., in Quirk v. Ins. Co., infra).
While the trial judge was not requested to, and did not, go into such an elaborate explanation of the rules relevant to burden of proof as we have endeavored to do, he, in effect, charged in accordance with the principles just announced; for, in connection with the instructions complained of in the present assignment, he twice told the
In Quirk v. Ins. Co., 12 Pa. Superior Ct. 250, chiefly relied upon by appellant, the plaintiff 'expressly assumed the burden of showing that the insured was in good health at the time the policy was issued; and, in order so to do, she undertook, as part of her case, to prove deceased had successfully passed “a searching physical examination to the satisfaction of defendant’s medical examiner.” In reply, defendant asserted the insured had passed no such examination, but some one else was •substituted in his place for that purpose. As the case was tried, the Superior Court held the court below had not erred in telling the jury plaintiff was “bound to show that the man who was examined was the man insured”; but, in connection with this ruling, Rice, P. J., correctly states the general rules on the burden of proof as we have given them above: “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 or production of evidence: 5 Am. & Eng. Ency. of Law (2 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.”
Although Quirk v. Ins. Co. and the case at bar have
The fourth assignment complains of the trial judge’s answer to another of defendant’s requests for charge, wherein the latter asked that the jury be instructed it was the duty of the person insured to call the attention of the insurance company to any incorrect answers written in the application by the latter’s agent; that, since in this case there was a failure so to do, plaintiff was thereby estopped from taking advantage of the policy in suit, and “the verdict must be for the defendant.” In refusing this point, the trial judge stated the applicant “was a foreigner who' could not read, write or speak the English language, and her husband could only write and read the English language imperfectly,” adding, “they trusted and confided in the agent of defendant company to correctly write down their respective answers.”
If the facts, as to the extent of the illiteracy of plaintiff and his wife, and their trust in defendant’s agent, were all admitted in the case, then, under our decision in Suravitz v. Prudential Ins. Co., 244 Pa. 582, the strict rules laid down in Rinker v. Ætna Co., 214 Pa. 608 (cited by appellant), would not be applicable, and a refusal of the point would be justifiable on that ground alone; but, since such facts were not admitted, the court, instead of treating them as established, should have recognized at all times the province of the jury to pass upon and determine the extent of the knowledge of the English language possessed by Suravitz and his wife
In the Rinker case, supra, the answers in the application were all warranted to be true, and it was therein agreed that, if they were not so, the insurance should be void; whereas under the express terms of the present application the answers are not warranties, but representations. The material differences in the governing rules of law between the two cases is pointed out by us in Suravitz v. Prudential Co., supra (see also Oplinger v. New York Life Ins. Co., 253 Pa. 328; Feinberg v. New York Life Ins. Co., 256 Pa. 61; and Baer v. State Life Ins. Co., 256 Pa. 177), and, thereunder, if the jury believed the testimony presented by plaintiff as to the illiteracy of himself and wife, their alleged lack of knowledge of the ailment from which the latter (as alleged by defendant) was suffering, and the alleged misconduct of the agent of the defendant company in wrongly transcribing their answers, then the failure to call the insurance company’s attention to any incorrect answers in the application would not entitle the latter to binding instructions in its favor, as requested in the point now under consideration; hence, no reversible error is shown by the present assignment, and it is overruled.
The fifth assignment alleges that the trial judge erred in- excluding a question put by defendant’s counsel to Dr. J. A. McGinty, who had attended and physically examined Mrs. Suravitz, in June, July, August, September, November and December, 1908, prior to the issuance of th’e policy in suit. This doctor testified that, at the time of his examinations, he found deceased suffering from serious heart trouble. The witness was. then asked, “was her condition at that time such that a doctor, using
The sixth assignment complains because the trial judge failed to read and affirm the following request for charge: “Statements of lay witnesses that they knew the insured and that she was apparently in good health, are insufficient to discredit the positive statements of physicians who had treated her for heart disease.” The failure to read and affirm this point might have been error, had it been preceded by some explanatory words, for example, “When the jury consider the question whether or not, at the time of her examination for the insurance, Mrs. Suravitz was suffering from heart disease, I instruct you that,” or “When the jury come to consider the actual condition of health of Mrs. Suravitz, etc.”; but, since the request lacked such essential explanatory words, the court below cannot be held to have erred in failing to affirm it, as drawn. Under the circumstances, we see no merit in the present assignment; it is overruled.
The seventh assignment complains that the trial judge erred “in excluding the record relating to the testimony
Tbe ruling just referred •' o was clear error, giving one side an unfair advantage over the other; and we have no doubt, as asserted by defendant, that tbe apparent differences in tbe testimony of Dr. McGinty at tbe two trials was made much of by plaintiff’s counsel in bis argument to the. jury: Albeit tbe presiding judge stated that tbe record showed what defendant’s counsel was attempting to get in, yet when tbe stenographer’s certified notes of testimony were actually offered, be excluded them; hence appellant did not get in evidence tbe relevant fact, or incident, which it endeavored to prove, i. e., that, at tbe prior trial, it bad unsuccessfully offered to place upon tbe record tbe same testimony given at tbe present trial.
Dr. McGinty is tbe physician Avho attended Mrs. Suravitz, and, probably, be was in a position to know more about her actual condition of health than any one else; moreover, he-is tbe sole person who is alleged to have actually informed plaintiff bis wife.bad heart disease; and tbe latter flatly contradicted him on this point. By tbe ruling complained of, tbe credibility of this most material witness, whose testimony bore either directly or indirectly upon all tbe controlling issues in tbe case, was in effect laid open to substantial attack. In aggravation of this error, it appears that plaintiff, after introducing tbe oral proofs already referred to, was permitted to place in evidence tbe part of tbe record of tbe former trial depended upon by him, showing Dr. McGinty’s testimony as to what be told Mr. Suravitz concerning bis Avife’s health, notwithstanding this was objected to by defendant on the ground that tbe offer did not include tbe question which was asked at that time by tbe latter’s counsel and excluded, as to what else tbe doctor bad told plaintiff about Mrs. Suravitz’s health; under tbe circumstances, tbe one part of tbe record should not have been
The eighth and ninth assignments complain of the refusal of binding instructions and of judgment n. o. v. in favor of defendant. When the suit was here on á former appeal, we stated, “This is clearly a case for the jury”; after reading the four hundred pages of testimony, etc., submitted at the trial now under review, and considering the able argument of counsel on both sides, we see no reason to change the opinion then expressed. The evidence shows defendant has ample grounds for gravely suspecting the good faith of plaintiff’s case; but, technically, it is one for a jury to pass upon. At the same time, it must be kept in mind the defense rests on allegations of fraud, and the insurance comphny depends largely upon circumstantial evidence, or the proof of facts from which inferences must be drawn, to relieve it from liability. Fraud may be established in this manner, when the evidence of the facts relied on for the purpose is “clear and satisfactory,” if the latter “naturally, logically and clearly indicate its existence” (10 R. C. L. 1004) ; but, when one is carrying the burden of such a defense, he should have full opportunity to present it, and is entitled to the protection of every legal right, be it technical or otherwise, so that, in the end, the issues involved may go to the jury on relevant and competent evidence, under proper instructions. In order to secure such rights to the present defendant, we have been obliged to sustain the second and seventh assignments of error; but, for the reason indicated earlier in this paragraph, the two assignments under immediate consideration are overruled.
The judgment is reversed with a venire facias de novo.