Mullen v. Union Central Life Insurance , 182 Pa. 150 ( 1897 )

Opinion by

Mr. Justice McCollum,

The plaintiff was the beneficiary named in the policy, and the assured was his sister. On the trial the court, on the defendant’s request, instructed the jury that the plaintiff had no insurable interest in the life of his sister by reason of their relationship. This instruction left the question of insurable interest to be determined on his evidence in support of his claim that he was a creditor of the assured. The learned court below thought, and so instructed the jury, that the evidence, if believed, was sufficient to sustain this branch of his contention. As the case is now presented to us it is not clear that the court erred in holding that it was for the jury to decide whether the plaintiff was a creditor of the assured when the policy was issued on her life for his benefit.

The court would not have been justified in taking the case from the jury on the ground of misrepresentation or concealment respecting the amount of insurance on the life of the plaintiff’s sister when the application for the policy in question was made. The testimony of the plaintiff and of the agent of the defendant company was clear on this point, and to the effect that the assured in answer to the agent’s interrogatories correctly stated the number and amount of the policies then held upon her life, and the names of the companies by which such policies were issued. The blank spaces in the printed application were filled by the agent, and it was his duty to insert in them the answers of the applicant to the questions formulated by the company he represented. It appears that he failed to mention in the application her policies in the Metropolitan Company, and that after he had completed the same it was not read by or to the assured or her beneficiary, both of whom relied on him to correctly insert in the proper places the answers to the questions addressed to her. Upon this omission or neglect of its agent the defendant company sought to escape liability on the policy, and it now complains of the rulings by which this branch, of its contention was defeated. In these rulings we discover no error. A clear warrant for them will be found in Dowling v. Merchants Ins. Co., 168 Pa. 234, where the rule on this subject is clearly stated, and the authorities for it are cited by our Brother Fell.

The question whether the plaintiff had an insurable interest in the life of his sister “ on the ground of kinship alone ” is not on this record. No specification of error raises it, although the learned counsel for the appellee have devoted considerable space in their paper-book to the discussion of it. We do not regard it as properly before us and we, therefore, decline to consider it on this appeal.

As the case was tried in the court below the controlling question in it was whether the plaintiff was a creditor of the assured. He claimed that he was, and he relied on his own testimony to support the claim. According to this testimony he commenced to work for his sister about twenty years before the policy in suit was issued on her life; he built fences and shanties for her and an addition to her house; he chopped wood for her; he planted, hoed and dug potatoes, and put them in her cellar for her use, and he did, “ everything that was needed to be done ” for her comfort. He testified that these services were worth at least $6.00 a month for each and every month of the twenty or more years in which they were rendered, and that he expected she would pay him for them, although he admitted that he kept ;no account of the work. In this state of the testimony it was clearly competent for the counsel of the defendant company to ask him on cross-examination if he had made an effort to collect his claim out of her estate. Any act or omission of the plaintiff inconsistent with his claim or with the testimony submitted to sustain it was pertinent to the issue, and therefore admissible, and so was a cross-examination of him directed to the development of a course of conduct incompatible with either.

The affidavit of defense was not offered in evidence, but the plaintiff, against the protest of the defendant, was allowed to read it to the jury in his argument upon the issues of fact. This, we think, was an unauthorized and improper use of it. The plaintiff had the affirmative of the issue and the closing argument. He was thus permitted to discuss to the jury, as an item of evidence, a paper which had not been received or offered as such and which the defendant had no opportunity to explain. If it contained an omission or statement inconsistent with the defense made on the trial, and the plaintiff desired the benefit of the inconsistency, he should have offered the paper in evidence. It was not an item of evidence in the case, and therefore the plaintiff had no right to read it or comment upon it to the jury.

We sustain the first and second specifications of error and overrule the other specifications.

Judgment reversed and venire facias de novo awarded.