Holleran v. Life Assurance Co. of America , 18 Pa. Super. 573 ( 1902 )

Opinion by

Rice, P. J.,

1. By the express terms of the policy offered in evidence by the plaintiff, the application was made part of the contract. What purports to be a copy of the application was attached to the policy. The offer was not restricted to any part of the paper, and was properly construed as an offer of the whole paper including this copy, although the latter was not specifically mentioned in the offer. Under the circumstances neither party is in a position to claim that the copy was not in evidence. For the purpose of showing that the insurance company had not complied with the Act of May 11, 1881, P. L. 20, the plaintiff might have called for the production of the original application and offered it in evidence. But it was not incumbent on the defendant to offer it in evidence. In the absence of evidence to the contrary, the case was to be determined in the court below and is to be considered in this court upon the assumption that the copy attached to the policy is a true copy of the original application. The second and third assignments of error are overruled.

2. The first assignment of error raises the question whether proofs of death are evidence against the plaintiff as binding admissions of the facts therein stated. Under the Pennsylvania authorities it is clear that while they are admissible in evidence, the plaintiff is not estopped at the trial by anything stated therein by others. Such statements are open to explanation and even to contradiction by the plaintiff: Lebanon Mutual Fire Ins. Co. v. Kepler, 106 Pa. 28 ; Fisher v. Fidelity Mut. Life Association, 188 Pa. 1; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Benseman v. Prudential Ins. Co., 13 Pa. Superior Ct. 363, 371. It is not clear that in the ruling complained of the court intended to hold otherwise. Other rulings made during the course of the trial show, that the learned trial judge did not hold that the proofs were of such binding force as to preclude the plaintiff from showing that the statements in the certificate of the attending physician were incorrect. It is unnecessary to discuss this assignment further.

3. The defendant’s counsel urge that in Pennsylvania, where an applicant for insurance warrants that he has not been attended by any physician other than as stated in his application, if the applicant has in fact been attended by a physician other than as stated, for a disease not mentioned in the application from which he dies, there can be no recovery upon the policy. Conceding for present purposes the correctness of the foregoing proposition of law, does it follow that the defendant was entitled to binding instructions? We think not. The answers to questions contained in the application were warranted to be true. The following is a copy of question fifteen with answer thereto: “ Q. How long is it since you consulted or have been attended by a physician, and for what disease? A. January, a year ago, with sore foot. Q. Give name and address of that physician. A. Howard Hospital. Q. Give name and address of your regular physician. A.-.” The attending physician in his certificate attached to the proofs of death, stated that he had attended the insured at different times between September 22, 1897, and February 8, 1899, the date of her death; that the disease of which she died was tuberculosis; and that she showed symptons of this disease at the date of her first visit to him. He was also called as a witness by the defendant and testified substantially to the same effect. Speaking of her first visit he said: “ My first record of the case is on September 22, 1897, in which I have recorded that she was at that time suffering from consolidation of the upper and middle lobe of the right lung.” In rebuttal the plaintiff called the examining physician of the insurance company, who testified that at the time of her application for this policy, December 9,1897, he examined the applicant carefully for the purpose of ascertaining and reporting to the company whether she was a proper risk, that he examined her for consumption and tuberculosis, and found no sign of any organic or functional disease of the lungs or other organs. He further testified that if consumption has developed to any extent, it can be readily detected although it may not in the very early stages. Members of the family of the insured also testified to her apparent good health until a short time before she died. Of course none of these witnesses could testify that she did not consult Dr. Flick on September 22, 1897, but it cannot be said that his testimony that she at that time had a serious disease from which she died was uncontradicted. Suppose that the case had been submitted to the jury and they had found that he was mistaken as to the latter fact, would they still have been bound to accept as verity his testimony, that she consulted him or that he attended her for that disease on September 22, 1897 ? Clearly not. The jury might find that to be the fact, but it was not within the province of the court to instruct them that they must so find. The burden of proving a breach of warranty rested on the defendant. The question whether the insured consulted a physician for a serious disease on September 22, 1897, was one of fact, and in our opinion the plaintiff gave sufficient testimony in rebuttal to require it to be submitted to the jury: Wall v. Royal Society of Good Fellows, 192 Pa. 577. The fourth assignment of error is sustained.

Judgment reversed and venire facias de novo awarded.