Mowry v. National Protective Society ( 1905 )

Opinion by

Henderson, J.,

As shown by the contract upon which this action is based, the defendant accepted John A. Mowry, the plaintiff’s husband, as a member. The policy issued to the insured recites that his occupation is “bridge builder.” The insured had been at work for several years as a bridge builder, and at the time of his death was employed in the erection of an iron bridge. When the treasurer of the defendant came to the plaintiff’s home to settle the loss, he alleged that her husband was insured as a “ wooden bridge builder,” and that according to the company’s classification of risks, she was only entitled to $100, with ten per cent added, as allowed by paragraph 8 of the policy, because his death occurred while he was working on an iron bridge. The plaintiff told him he was mistaken in regard to that, but as she did not have the policy in her possession at the time, she proposed to send for the policy of Mr. Brack, one of her neighbors, who was insured in the same company at the same time with her husband, and who was engaged in the same occupation, for the purpose of ascertaining what the conditions of the policy were. When the Brack policy was brought in by the plaintiff’s little girl, the treasurer took the policy and opened it up, and he says, ‘ right here it says wooden bridge builder, and you are only entitled to $110.’ ” He further stated that she would have to take that or nothing; that he was in a hurry to go, and if she would give him a piece of paper he would write out an order to get the policy, which was then in Connellsville. The plaintiff, relying upon the representation of the treasurer as to the form of the Brack policy, concluded to accept the amount said by the treasurer to be due upon her husband’s policy, and gave the receipt offered in evidence, and the order to the treasurer to get the policy. The plaintiff’s statement as to the occurrence at the time the receipt was given is strongly corroborated by the testimony of her father and daughter, who were present.

The case presented is not one of the settlement of a disputed claim, or the compromise of a doubtful right. The allegation is that the agent of the company fraudulently misrepresented the terms of the contract, and that when the Brack contract was produced, he fraudulently and deceitfully read that part of it material to the question which the parties were then considering. It is undisputed that Bruck’s occupation was described in the policy from which the treasurer pretended to read, as “bridge builder,” and the evidence is clear and uncontradicted that he read it as if it were “wooden bridge builder.” The plaintiff had recently lost her husband, she was not in good health nor familiar with business, and the policy not being at hand, was induced by this misrepresentation to accept the agent’s statement of the terms of the policy, and to receive the amount claimed by him to be due thereunder. Such is the story as disclosed by the plaintiff’s evidence. The question presented, therefore, was one of fact for the determination of the jury. Tt may be conceded, as shown by numerous authorities, that if a dispute arose as to the liability of the company under the contract, and a compromise were made of a doubtful right, such compromise would be binding upon both parties in the absence of fraud; but this question is not presented here. Any dispute which existed was as to the form of the contract, and this was disposed of by the appeal to the Brack policy, in the reading of which to the plaintiff the company’s agent perpetrated a fraud which resulted in her acceptance of a less amount than by the face of the policy was due. The defendant did not deny liability, but alleged that, according to the terms of the policy, that liability only amounted to $110, which amount was then paid. This payment was not as a consideration for a compromise, but was made in discharge of an admitted liability on the original obligation.

On the facts as presented, the plaintiff was not bound to return or tender the money paid before bringing her action. The company lost' nothing by the payment, and was not put in a worse position thereby. It was made because the money belonged to the plaintiff. Upon what principle can it be contended that she is bound to repay to the company that which it admits belongs to her under the contract of insurance ? The case is clearly within the principle of Blair v. Supreme Council, 208 Pa. 262. The offer of evidence contained in the first assignment was properly rejected; first, because it was evidence for the defense and not competent at the time it was offered ; second, because the document offered was not shown to have been that in possession of the treasurer at the time the payment was made to the plaintiff; third, because it presumably contained by-laws or rules of the company or regulations bearing on the contract, and was, therefore, inadmissible, because a copy thereof was not attached to the policy, as required by the Act of May 11,1881, P. L. 20. Argument would be superfluous to show that the “ manual ” of the society, which interpreted the policy and determined the amount due thereon constitutes “rules of the company .... bearing on said contract.”

The several assignments to portions of the charge cannot be sustained. The learned judge presented the case fairly and clearly under the evidence, and the charge, taken as a whole, is free from criticism.

The answers to the plaintiff’s first and second points, set forth in the seventh and eighth assignments of error, are based upon the plaintiff’s prima facie ease, and are fully warranted by the evidence. Having offered the policy and made proof of the circumstances of death of the insured, and of the business in which he was engaged, the plaintiff exhibited a case entitling her to a verdict for the amount payable by the face of the policy, in the absence of any legal defense. As applied to the facts of the case, the answers of the court to plaintiff’s points, as set forth in the ninth and tenth assignments of error, were not erroneous. The language of the points directed the attention of the jury to the evidence. They could not have been led to their consideration as abstract propositions. The jury was satisfied upon evidence, competent and sufficient for the purpose, that the plaintiff was misled and deceived by the representations of the defendant’s agent with reference to the terms of the policy, and upon the record as presented the verdict should not be disturbed.

The judgment is affirmed.