13 A. 932 (Pa. 1888), 9, U. B. Mutual Aid Soc. v. O'Hara
| Judge | Before GORDON, C.J., PAXSON, GREEN, CLARK and WILLIAMS, JJ.; TRUNKEY and STERRETT, JJ., absent. |
| Parties | THE U. B. MUTUAL AID SOC. v. O'HARA |
| Date | 30 April 1888 |
| Citation | 120 Pa. 256,13 A. 932 |
| Court | Pennsylvania Supreme Court |
| Docket Number | 10,9 |
Page 932
Argued: April 10, 1888
ERROR TO THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.
Nos. 9 and 10 July Term 1887, Sup. Ct.; court below, Nos. 187 and 188 May Term 1882 C.P.
On April 23, 1881, Bernard O'Hara, of Plymouth, obtained two policies of life insurance, or certificates of membership, in The United Brethren Mutual Aid Society, of Lebanon, Pa., each in the sum of one thousand dollars, one for the benefit of his wife, Mary T. O'Hara, and the other for that of his son, John F. O'Hara. He died the same year, December 14th, and the proper proofs were sent to the company. Payment being refused, separate suits were brought, in debt, by Mary T. O'Hara and John F. O'Hara, on March 28, 1882.
At the trial of the two causes together, on March 10, 1887, it was made to appear that in the policies or certificates of membership it was stipulated that if any answers or representations made by the assured in his applications should be found in any respect untrue, the certificates should be null and void. Evidence was introduced as a defence to the actions, from which it was claimed by the defendant that the answers by the assured to certain interrogatories in the application, to the effect that his habits of life were temperate, that he had never been afflicted with asthma, or dropsy, or any other disease, that he had not had any medical attendance during the year prior to his applications and had no family physician, were untrue.
Conrad Lee, called for defendant, had lived at Plymouth for eleven years, knew Bernard O'Hara, and was outside superintendent at the mines where O'Hara worked:
Q. Whether he was in the habit of coming home sober or drunk? A. Well, as a general thing he came home more times sober than he did drunk. Q. How would he behave himself when he got home? Objected to. Q. How often would he come home drunk on an average in the course of a month? A. I could not say exactly whether he was drunk or not; he would come in and have a good deal to say, more talk sometimes than he did at others; I judged at that time he had been drinking a little, taking a drink or two. Q. How often in the course of a month would he come home under the influence of liquor? A. I have noticed this perhaps three or four days after pay; that is perhaps the way it ran. . . . Q. How would he conduct himself at these times at his own home? Objected to as not material.
By defendant's I propose to show that he came home and behaved uproariously, just as an uproarious drunken man does, and abused his family. Objected to as not material.
By the court: I do not think the manner of his treating his family is direct evidence on the matter of intemperate habits. I hardly think this is fair evidence on this question. Objection sustained.
Thomas J. Phillips, called for defendant, was the inside foreman at the Avondale mines where O'Hara was employed:
Q. You knew Bernard O'Hara? A. Yes, sir. Q. Tell us as to whether or not he was afflicted with asthma. Objected, that witness has not been shown competent to pass upon that question.
By the court: I suppose in a case where the question is about a certain disease and not about the general health, it would be incompetent for a man who is not an expert on the subject to define the disease. If you want to prove general poor health or anything of that kind, I suppose you can do it by this witness.
By defendant's I simply ask this man whether O'Hara was afflicted with shortness of breath, whether he observed that in his daily life? Plaintiffs object that the witness must state the facts and not give his conclusions from the facts.
By the court: I think you may ask him whether he was sick, and how he was affected; but you may not ask him if he had any specific disease.
Plaintiffs' counsel make the further objection that the question is leading.
By the court: It certainly is leading and will have to be overruled on that ground. We overrule it on that ground and on the other also.
The same witness was asked on behalf of the defendant:
Q. Did you ever see Mr. O'Hara under the influence of liquor? Objected to.
By the court: The habit of life means something more than one drink.
Q. Whether you saw him drink more than once? Plaintiffs' counsel object that the question should be put in the language of the application.
By the court: Objection sustained, question excluded.
The court, WOODWARD, J., charged the jury and answered the defendant's points as follows:
We have said to you that a policy of life insurance is, in the eye of the law, a contract. We may say further, and more specifically, that a contract of life insurance is an agreement to pay a certain sum of money on the death of a person, in consideration of the due payment of an annuity as provided in the policy, during his life. In all contracts of insurance, certain statements are made, stipulations entered into, certain provisos, conditions and by-laws introduced or referred to, and when made part of the policy, they become what is called and are so denominated in the law of insurance, warranties. By a warranty, the insured stipulates for the absolute truth of the statement or statements made, upon penalty of forfeiture of his own right and that of those coming after him, to recover in case of loss, should the statements prove untrue; in other words, the truth is a condition precedent to the right to recover the amount of a life insurance policy.
What is called the application for a life insurance policy, is generally made a part of the policy, and enters into the contract, and therefore must be referred to. In the present case an application for insurance, or as it is called in this particular instance, for membership, in the U. B. Mutual Aid Society of Pennsylvania, was regularly made by Bernard O'Hara. In that application there are certain questions to which are appended his answers. The law applicable to such a case is this:
If the applicant makes a false answer as to having had any one of several diseases specially mentioned, although he does so innocently and from ignorance, he forfeits his right to recover the insurance which has been granted to him upon the faith of such answers, which become warranties, and the falsity of which vitiates the contract contained in the policy. Question 11 in the application in the present case is this: "Have you ever been afflicted with or had any symptoms of the following diseases;" mentioning a number of diseases to which it is not necessary to call your attention, but including the two that have become important in the present controversy, namely, dropsy and asthma; and to that question the applicant answered as appears from the application, "No." No. 12 of the questions is this: "Have you ever been afflicted with any other disease or complaint not above mentioned? If you have, state the nature and character of the disease or complaint." To this also the answer is "No." The law applicable to question 12 is this: If there is no wilful misrepresentation in regard to other diseases, the policy is not vitiated, necessarily. There is a distinction in the law between the answer made to a question referring specifically to certain diseases, and to the case of a question referring in general terms to other diseases. In the first case, an inaccurate or false answer is fatal to the policy, although innocently made and in ignorance of the truth. In the second case, there must be shown, in order to vitiate the policy, a wilful misrepresentation. That, as we understand it, is the law in regard to that distinction.
[Question 13 is this: "Are your habits of life temperate? If so, have they always been so?" And the reply is "Yes." Considerable evidence has been introduced on the part of the defendant, and also in rebuttal on the part of the plaintiffs, relative to this question. It is our duty to charge you upon this subject, to define the meaning of this question. The question is not, "Do you drink liquor?" Or, "Are you a total abstainer from the use of intoxicating drink?" But is it the custom and habit of your life to refrain from intemperance and intoxication? It is doubtful whether there would be much life insurance business carried on successfully, on any contract more stringent than the one which we interpret this to be. A man who works in the mines day after day, promptly and regularly, who supports his family comfortably, and lives an orderly and respectable life in all regards, is not to be pronounced an intemperate man or a man of intemperate habits, upon evidence that he occasionally has indulged in the use of...
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