120 Pa. 256 | Pa. | 1888
Opinion,
These cases were tried together in the court below, were argued together here, and may be disposed of in one opinion. The questions are alike in each.
The actions were debt on policies of insurance. The defence was that the assured had made false answers to certain interrogatories contained in the application. In the policy or certificate of membership, it was expressly stipulated that if any answers or representations made by O’Hara, the assured, in his application, should be found in any respect untrue, then the certificate should be null and void. It was alleged by the defendant company that in his application O’Hara stated that his habits of life were temperate, and that he had never been afflicted with asthma, or dropsy, or any other disease, and that he had not had any medical attendance during the year prior to his application, and that he had no family physician. The company alleged that these representations were untrue, and took upon itself the burden of establishing their untruth.
In the third and tenth assignments complaint is made that the court below excluded certain evidence offered to prove that the assured was a man of intemperate habits. Referring'to the tenth assignment, the witness upon the stand was asked the question: Did you ever see Mr. O’Hara under the influence of liquor ? This was objected to, and was ruled out by the court for the reason that “ the habit of life means something more than one drink.” The remark of the learned judge was entirely accurate, but it was not a sufficient reason
Another branch of the defence was that the assured was afflicted with asthma. It was not error to refuse to allow the company to prove this by an inexpert witness. (See fifth assignment.) But when the same witness was asked whether O’Hara was afflicted with shortness of breath, the question should have been allowed. It referred to a matter of fact. The witness had worked with O’Hara; he could tell whether
We regard the answer to the defendant’s sixth point as misleading. The point was: “ If the jury find that Bernard O’Hara had had any medical attendance within the year prior to his making said application, then the plaintiff cannot recover.” The learned judge affirmed this point as qualified in his general charge. An examination of the general charge does not furnish an adequate answer to the point. The eighth interrogatory in the application is : “ Have you had any medical attendance within the last year prior to this date ? If so, for what disease ? Give name and address of the doctor in full.” The object of this interrogatory is manifest. If the assured had no medical attendance within the time prescribed, and so answers, that is the end of it. But1 if he had such attendance, then the company is entitled to know for what cause he had medical advice or aid, and the name and address of the doctor, in order that they may ascertain the particulars from him. And if the assured falsely answer that he had no medical attendance, he is not entitled to recover. It follows that the point in question should have been affirmed.
The remaining assignments we do not regard as important.
Judgment reversed, and a venire facias de novo awarded.