Fisher v. Fidelity Mutual Life Ass'n

Opinion by

Mr. Chief Justice Stebbett,

In this action, on a policy of insurance issued by the defendant association on the life of Edgar L. Fisher, the sum claimed was |5,000 with interest. It is averred in the statement of claim that “ a true and complete copy of the policy is attached to and made part hereof.” The policy on its face is asserted' to be “ subject to all the requirements hereinafter stated and conditions hereon indorsed, which are hereby referred to and made a material part of this contract;” but no such conditions were attached to plaintiff’s statement as filed. Among those conditions is a stipulation that if, within three years from the date of the policy, the member dies by his own hand, the policy shall be absolutely void, “ except as to the moneys paid hereon, which moneys ..... shall constitute the sum insured and the association’s liability under this policy.” Instead of demurring to the statement, the defendant company filed an affidavit of defense in which it is averred that defendant never issued such policy, and if plaintiff had such policy it was a forgery, and that “ defendant is not indebted to the plaintiff in any sum whatever on account of such policy.” The plea was non assumpsit ; but, the real defense to plaintiff’s claim was that the assured had committed suicide. It is conceded that under the terms of the policy as contained in the indorsed conditions the sum of one hundred and five dollars (f 105) was due and owing by the defendant for premiums paid, notwithstanding the defense of suicide, but no such claim is made in plaintiff’s statement.

The first three specifications, complaining of the learned court’s rulings on questions of evidence, are not in proper form; but waiving that we think neither of them should be sustained.

in opening the case, plaintiff was called as a witness and identified the policy in suit. His counsel offered in evidence the face of the policy alone, but the court refused to admit it without the indorsements thereon. When the policy as a whole was offered the defendant objected that it did not correspond with the instrument declared on. The learned judge, holding “ that the matter is one of form in pleading rather than of substance,” admitted the whole policy. There was no error in thus ruling. Plaintiff’s statement of claim gave ample notice of the policy upon which suit was brought. Attached thereto was a copy of the contract of indemnity as contained in the policy. Plaintiff considered it unnecessary to attach also a copy of the “privileges and conditions” referred to in the policy and indorsed thereon, for the reason that they refer to the by-laws for additional privileges, and the by-laws were not attached to the policy as required by the act of 1881. If the defendant wished to object to the statement in this form it should have demurred. Having failed to do so, objection on that ground came too late.

The suggestion that the allegata and probata do not agree is without force. The contract alleged is a conditional policy of insurance; the contract proved is the same. While the plaintiff’s statement omitted some of the terms of the contract as claimed by the defendant, it was the fault of the latter that it did not take advantage of their omission at the proper time, if they were deemed essential. The ruling of the learned judge was equivalent to an amendment of the plaintiff’s statement, and it will be so treated here. If the defendant was not prepared to meet the issue in that form it should have pleaded surprise and asked a continuance. It is too late now to raise this objection.

Another matter that appears on the record in this connection, is worthy of notice. The policy offered in evidence had indorsed thereon a copy of the application upon which the policy was issued, but it clearly appeared in evidence that there was' a supplemental- application which was not attached to or indorsed on the policy. The caption of that paper is entitled “ Supplementary application. Statement made to the medical examiners as supplemental to and part of the application,” etc. The omission of this from the policy was a failure to comply with the requirement of the act of 1881. That act requires that a copy of the entire application, — not merely a part thereof, — shall be attached. The omission of a part, which of course includes a supplementary part, operates to exclude the whole. The statute must be interpreted in the spirit in which it was enacted. As' was said in New Era Life Association v. Musser, 120 Pa. 889: “ It is a wise and beneficent act, founded upon sound reasons of public policy. It affords protection to persons who insure their lives or property, and can injure no company conducted upon honest business principles.”

As to the second specification it is sufficient to say that the entire statement was subsequently received in evidence and considered by the jury. The exclusion of the letters complained of in the third specification was justified on the ground that they were communications made in an offer or negotiation with the view of a settlement.

There was no error in refusing to affirm defendant’s points recited in the seventh and eighth specifications respectively. It would have been error to have withdrawn the case from the jury and direct a verdict for the defendant.

The fourth, fifth and sixth specifications allege error in portions of the charge recited therein respectively. When considered in connection with other portions of the charge, there appears to be nothing in either of these excerpts that would justify a reversal of the judgment.

The seventh paragraph of the conditions printed on the back of the policy, containing the provision as to death of the assured “by his own hand,” is as follows: “It is understood that if the member within three years from the date hereof die by his own hand, whether sane or insane, or if he shall die in consequence of a duel, or at the hands of justice, or though the habitual use of narcotics, or alcoholic or other stimulants, or if he shall practice any habit that tends to shorten life, or if at any time he shall engage in any military or naval service in time of war (militia service to suppress local disturbances excepted) this policy shall be absolutely void, except as to the moneys paid hereon,” etc.

The defendant’s contention that under this clause the burden was on the plaintiff, not only to prove the policy, but also that the assured did not “die by his own hand,” is wholly untenable. If he was required to prove a negative as to death by suicide, it would necessarily follow that, for same reason, he was required to establish the nonexistence of all the other stringent provisions by which the policy might be avoided. There is no force in the suggestion that defendant’s contention as to the burthen of proof is sanctioned by the language of the policy, that payment shall be made, “after receipt of satisfactory proof of death of said member and the justness of the claim thereunder.” This clearly contemplates nothing more than that a, claimant shall mate out his case by affirmative proof of death and title in the policy: Biddle on Ins. sec. 1003, and cases there cited.

The further position, that plaintiff was precluded from recovery because the proofs-of death in this case established the fact of death by suicide, is also untenable under the evidence. In the “ claimant’s statement ” filed as “ proofs of death,” to which a copy of the coroner’s inquest and the testimony given thereon were attached, plaintiff entered the following protest: “ I have been informed the verdict was suicide, but I decline to be bound by it.” The defendant made no request for further proofs, but accepted them as filed. On the trial, it attempted to prove the defense of suicide by offering the proofs of death and the copy of the coroner’s notes, as admissions by the plaintiff. But their force in that regard was very much weakened, if not wholly overcome by the protest. By attaching a copy of the verdict and depositions plaintiff admitted their existence, but by his protest he expressly declined to admit the truth of the fact which the defendant company sought to establish by them. It certainly has no right to complain of the manner of their submission to the jury.

Two of the three cases cited by defendant as authority for its position are to the effect that a plaintiff is bound by admissions contained in the proofs of death and cannot offer any evidence to contradict or vary them; bnt the contrary has been held in this state: Lebanon Ins. Co. v. Kepler, 106 Pa. 28, 34. The other is Insurance Co. v. Newton, 22 Wallace, 32. In that case, the affidavits giving the time, place and circumstances of the death of the assured and the record of the coroner’s jury were offered in evidence as proof of the fact of the death, and the court held that the whole admission must be taken together, and as it showed death by suicide there could be no recovery. This case is different in that there was no admission by plaintiff that death occurred by suicide. In that case the admission was clear and uncontradicted. This ground of distinction is pointed out in Insurance Co. v. Higginbotham, 95 U. S. 390. See also Goldschmidt v. Mutual Life Ins. Co. 102 N. Y. 486, in which the facts are similar to those of the present case.

Our consideration of the record has failed to disclose any error that requires a reversal or modification of the judgment. The specifications of error are therefore overruled, and the judgment is affirmed.