Hermany v. Fidelity Mut. Life Ass'n

Opinion by

Mr. Justice Sterrett,

This case hinged mainly on questions of fact which were exclusively for the consideration and determination of the jury. These questions, together with the evidence relating thereto, were fairly submitted to them by the learned president of the common pleas in a clear and comprehensive charge to which, as a whole, no just exception can be taken. A verdict having been rendered for the plaintiffs, it must now be conclusively presumed that the cardinal facts were all found in their favor; and, unless some error of law contributed to that result, the judgment should not be disturbed.

Fifteen points for charge were submitted by defendant. In ’ the 11th the court was requested to charge as follows: “ If you believe that Lewis Hermany, the insured, within ten years prior to making said application, consulted or was prescribed for by either Dr. Shade, or Dr. Graver or Dr. Rowe, then your verdict will be for the defendant.” This point was affirmed without qualification. In view of the verdict for plaintiffs, it necessarily follows that the facts of which it is predicated were all found against the defendant.

The 12th, 13th and 15th points, as presented, might have been refused, but each of them was affirmed with a qualification, which, in view of the evidence, was entire y proper. In the first of these, the request was to charge: “ If you believe that said Lewis Hermany, within ten years prior to the making of said application, had disease of the genital or urinary organs, then your verdict» will be for defendant.” This was affirmed—“ provided the jury finds that the misrepresentation was material to the risk. But, if the jury find that the diseases here referred to were not material to the question, whether or not Lewis Hermany should obtain the insurance, then, if the jury find that Lewis Hermany made the statements and they were untrue, but he believed his statements to be true— made them in good faith,—had forgotten or never knew of the existence of said disease, then the plaintiffs may recover.”

In view of the provisions of the act of June 28, 1885, P. L. 184, it cannot be doubted that the qualification was proper. The first section of that act provides that in warranties contained in such applications, no misrepresentation or untrue statement made in good faith by the applicant, “ shall effect a forfeiture, or be a ground of defence ” in any suit, etc., “unless such misrepresentation or untrue statement relate to some matter material to the risk.” This act has effected a change in life insurance contracts,—a much needed change so far as some insurance companies are concerned. The questions of materiality and good faith are ordinarily questions of fact, and therefore for the jury. They were certainly so in this case.

The 13th point, in which the court was requested to charge: “ If you believe that Lewis Hermany, at the time of making said application, was not in good health, your verdict will be for the defendant,” was affirmed, and rightly qualified in same language as the preceding point.

For obvious reasons the qualified affirmance of the 15th point was fully warranted by the circumstances of the case. The fact, of which the point is predicated, was properly submitted to the jury, under all the evidence, with instructions that if they found it to be true the plaintiffs could not recover.

Further reference to the specifications, relating to the answers to defendant’s points, is unnecessary. To notice them separately, or at greater length, would serve no useful purpose. The first twelve specifications are not sustained.

We are not convinced that there was any error in overruling either of the offers of evidence recited in the 13th, 14th and 15th specifications respectively. The reasons suggested by the court appear to justify the action complained of.

There was no error in charging the jury as complained of in the 16th to 20th specifications inclusive. The proofs, referred to in the first of these excerpts from the charge, were for the 'court and we think no undue effect was given to them.

■ In the portion of the charge recited in the 17th specification, after referring to provisions of the Act of 1885, relating to warranties in applications for life insurance policies, heretofore briefly noticed, and also to the fact that the policy in suit contains a waiver by the insured of the provisions of any statute which might affect the contract of insurance as expressed in said policy, etc., the learned judge held in substance, and so instructed the jury, that notwithstanding such comprehensive waiver, full force and effect must be given to the provisions of said act.

The first section of the act declares that “ whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application, made in good faith by the applicant, shall effect a forfeiture, or be a ground of defence in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk.” The evident purpose of this legislation was to strike down, in this class of cases, literal warranties so far as they may be resorted to for the disreputable purpose of enforcing actually immaterial matters. It provides a rule of construction for the purpose of preventing injustice; and it is as much the duty of courts to enforce such rules as it is to administer the statute of frauds and perjuries. It would be contrary to public policy to recognize the right of parties to circumvent the law by setting up a waiver such as was insisted on in this case. The court was therefore right in holding that the waiver was invalid.

There appears to be nothing in those portions of the charge complained of that would warrant a reversal of the judgment.

Judgment affirmed.

Ms. Justice Mitchell dissents.