Fidelity Title & Trust Co. v. Illinois Life Insurance Co. , 213 Pa. 415 ( 1906 )

Opinion by

Mr. Justice Stewart,

This was an action on a policy of insurance issued by the defendant company on the life of William J. White, brought by plaintiff as guardian of the minor children of the insured. The assignments of error relate to the admission, rejection and sufficiency of evidence. They include nothing beyond.

On the trial, the first offer on the part of the plaintiff, was so much of the statement filed in the case as was not denied in the affidavit of defense. This included the specific averments ; that the policy of life insurance in the sum of $5,000 had been issued by the Illinois Life Insurance Company, the defendant, October 15, 1900; that the premium on this policy had been paid up to November 6, 1902, the date of the death of the insured; that proofs of death were made to the company as required by the terms of the policy; and that the policy had not been paid.

The offer was subsequently enlarged so as to include the policy itself. The grounds of objection to this offer were: 1. That on the face of the policy the following language appears : “ See copy of application inside and if errors or omissions are found therein note the same and return the same to the Illinois Life Insurance Company, Chicago, Illinois, for correction,” and no such application appears upon the paper offered . and no explanation for its absence is given. 2. Because it is provided in the policy, that the policy shall not take effect until the first premium has actually been paid in cash, during the lifetime and good health of the insured, and therefore the policy is not competent unless proof is given by the plaintiff that the decedent was in good health at the time.

Although unimportant in this immediate connection, it may be well to state here, that it was at no time alleged that the application referred to had been fraudulently suppressed, or had in fact ever been issued. The fact seems to be that it was originally omitted from the policy by mistake.

With respect to the first objection — The policy of insurance was the basis of the action, and the statement contained an express averment that the copy filed was a true copy of it; and that the insured in his lifetime had performed the conditions and covenants stipulated in said instrument or contract of insurance. The affidavit of defense admitted the issuing of the policy and the contract of insurance as set out in the statute, but alleged, as matter of defense, that the insured had procured the policy to be issued by fraudulent misrepresentations. The affidavit contained no denial, either express or by implication, that the policy was the contract of insurance, and the entire contract. The supplemental affidavit, made by the same officer who made the original, merely averred that the affiant did not know, at the time the original affidavit was made, that the copy of the insured’s application was not filed with the copy of the policy. This left the policy as free from objection, as matter of evidence, as any other of the undenied averments of the statement.

The printed notice on the policy, directing attention to the copy of the application inside, did not affect in any way the admissibility of the policy in evidence; nor was the plaintiff bound at this stage of the case to explain the absence of the application. The court below was not called upon in this inquiry to decide what effect the notice on the face of the policy had upon the rights of the parties themselves, or whether, being there, it imposed any particular duty upon the assured. Nor are we now; the question being as to the admissibility of the policy in evidence. Inasmuch as it was admitted by the pleadings to be the contract of the parties, there is no rule of evidence by which it could have been excluded.

As to the second ground of contention — Even though, as contended, a payment by the insured of the first premium while in good health, was a condition precedent, and the contract of insurance dependant upon its fulfillment, the admission by defendant of the facts set out in the statement, that the insured had performed all things on his part to bo fulfilled, the policy, as a matter of evidence, stood clear of all such objection as that urged.

The fourth assignment relates to the rejection of evidence offered on behalf of the defendant. The offer was to show the rejection of William J. White as an applicant for life insurance in the Mutual Benefit Life Insurance Company, of Newark, N. J., to be followed by evidence that, at the time of the application to the defendant company, for the insurance sued for, he represented that he had never been rejected as an applicant for life insurance. Were there nothing more to justify the ruling of the court in rejecting this offer, the fact that it was not proposed to show the identity of the William J. White referred to with the insured in this case, would be quite sufficient. This was the answer made when the objection was stated, and the fact that no amendment of the offer in this regard was proposed, shows that the omission of this from the offer was not accidental. The evidence was properly rejected.

Defendant’s next offer was to show, by the medical examiner of the company, that when the insured was examined by him before the policy issued, he was interrogated orally as to whether or not he had any disease of the kidneys, or whether he had ever had any such disease, and that the insured replied orally that he had not. This offer was, in connection with the evidence already in, for the purpose of negativing any inference that might arise in the case, that the risk upon the life of the insured was accepted by the company with the knowledge that the insured was suffering with kidney disease; and also for the purpose of showing that the insured had procured the policy issued to him, by false and fraudulent misrepresentations as to his physical condition, such misrepresentations relating to a material fact relied on by the defendant.

This offer conflicts directly with the Act of May 11, 1881, P. L. 20, relating to life and fire insurance policies. It is there provided that the application shall not be considered a part of the policy or contract between the parties, unless a correct copy of such application be attached to the policy, and the application in this case was not attached. In the affidavit of defense it was admitted that a written application had been made, in which the very thing here proposed to be shown was inquired of, and written answers in response obtained from the insured. It is to make the act of no effect, to say that it excludes the paper being considered a part of the contract between the parties, but allows proof of what it contains for that very purpose; not only so, but it reverses the established order of proof that always regards the written document as the first and best evidence of the contract, and excludes all other until the writing be introduced, or its absence accounted for. There was no error in the rejection of the evidence.

What we have said applies equally well to the seventh and eighth specifications, which relate to the exclusion of evidence, the purpose of which was, in one case, to introduce the contents of the application paper, and in the other, the paper itself, or so much of it as is entitled “medical examiner’s report, ” containing questions and answers of the insured relating to his physical condition.

The case as tried presented a single issue of fact. One of the terms expressed in the policy was, that it was not to take effect until the first premium had actually been paid in cash during the lifetime and good health of the insured. It was admitted by the pleadings that all the premiums had been paid, but it was attempted to be shown, that when the first premium was paid, the insured was suffering from the malady that finally terminated his life. In this connection, to negative the inference that defendant had waived this condition in the policy, and for this purpose only, defendant was allowed to introduce the insured’s application, showing that he there had represented himself as free from such disease. Defendant’s case on this point, rested largely upon the testimony of Dr. As-dale, who was the physician of the insured. He testified that from the examination made by himself of the insured’s urine, shortly before the policy was issued, he was satisfied that the insured was the victim then of Bright’s disease, from which he died two years later; that this disease was progressive and incurable. The testimony of Dr. Ingram, the medical examiner of the defendant company, the only additional witness, was of little value, since it was not shown with that degree of certainty that the case required, that the urine he examined, and which he considered, showed sure indications of Bright’s disease, in the person who voided it, was the urine of the insured. Dr. Asdale had sent it to this witness by the hand of his son, and could not tell whether he himself had received this particular specimen from the insured or whether it was one of several specimens that had been given him by those in charge of his office, during his absence, and which was represented to him as having been left there by the insured for examination. It will be seen that defendant’s case upon this point, rested almost entirely upon the testimony of Dr. Asdale.

The case where an assault of this kind could be met by counter expert testimony, would be rare indeed; and it is not surprising that the plaintiff could only meet it by testimony going to the apparent health of the insured. A single witness was called on behalf of the plaintiff — the employer of the insured — who testified to close and intimate relations with the insured, over a long period of years, continuing until the date of his death. He testified that at the time inquired of, the insured’s health was good, and that he continued to attend to his duties at the college where he was employed, until a day or two before his death, stating clearly the opportunities he had of knowing the insured’s daily condition during all that period. This conflicting testimony was submitted to the jury in an impartial charge, which should have been entirely adequate, addressed to a jury of ordinary intelligence. The submission was a matter of course, and the finding of the jury in favor of the plaintiff was a conclusion that cannot now be disturbed.

All the assignments of error are overruled and the judgment is affirmed.