Fidelity Title & Trust Co. v. Illinois Life Ins. Co.
| Decision Date | 02 January 1906 |
| Docket Number | 79,80 |
| Citation | 213 Pa. 415,63 A. 51 |
| Parties | Fidelity Title and Trust Company v. Illinois Life Insurance Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 27, 1905 [Copyrighted Material Omitted]
Appeals, Nos. 79 and 80, Oct. T., 1095, by defendant, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1905, Nos 387 and 388, on verdict for plaintiff in case of Fidelity Title and Trust Company, Guardian of George L. White, Robert G. White and Gladys L. White, minor children of William J. White, deceased, and Jennie E. White, v. Illinois Life Insurance Company. Affirmed.
Action of assumpsit on two policies of life insurance. Before EVANS, J.
At the trial plaintiff made the following offer:
In the case at No. 387, February Term, 1903, counsel for plaintiffs offer in evidence the averments of the plaintiffs' statement not denied by the affidavit of defense, to wit:
That William J. White, deceased, took out a policy of insurance in the Illinois Life Insurance Company, on October 15, 1900, in the sum of $5,000; that the premiums on this policy were duly paid up to the time of said William J. White's death, on November 6, 1902; that proofs of loss were duly made to the defendant company of said death and said policy has not been paid.
Mr. Ferguson: The offer is objected to in so far as it relates to the policy, for the reason, first, that the policy produced does not contain a copy of the application attached to it, although the application is referred to upon the face of the policy as attached, and no explanation is proposed to be given as to why the application is absent.
The Court: I do not understand the offer to include the policy. The offer is simply that the decedent took out a policy.
Mr. Dalzell: That is right. We are simply offering in evidence so much of the affidavit of claim as is not specifically denied by the affidavit of defense.
The Court: You are not offering the policy?
Mr. Dalzell: No. There is nothing in either the affidavit of defense or the supplemental affidavit of defense that raises the question as to the application.
Mr. Ferguson: If the offer as made is as your honor understands it, of course there is no objection.
Mr. Young: I will amend that offer by offering in addition thereto the copy of the policy which is attached to the statement of claim in this case, marked exhibit "A," the same purporting to be a correct copy of the policy which was issued to William J. White, the decedent.
Mr. Ferguson: The defendant objects because on the face of the policy the following language appears:
"See copy of application inside and, if errors or omissions are found therein, note the same and return the same to the Illinois Life Insurance Company, Chicago, Illinois, for correction," and no such application appears upon the paper offered, and no explanation for its absence is given.
2. Because it is provided in the policy that the policy shall not take effect until the first premium has actually been paid in in cash during the lifetime and good health of the assured, and, therefore, the policy is not competent unless proof is given by the plaintiff that the decedent was in good health at the time.
Objections overruled. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [2]
In the case at No. 388, February Term, 1903, counsel for plaintiffs offer in evidence the averments of plaintiffs' statement not denied by the affidavit of defense, to wit:
The plaintiff, the Fidelity Title & Trust Company, a corporation of the state of Pennsylvania, which was duly appointed by the orphans' court of Allegheny county at No. 122, November Term, 1902, guardian of Gladys L. White, minor child of William J. White, deceased, claims of the defendant, the Illinois Life Insurance Company, a corporation of the state of Illinois, the sum of $2,500 upon a policy of insurance, dated October 22, 1900, with interest thereon from November 6, 1902, justly due and payable to the plaintiff, of which claim the following is a statement:
A policy of insurance, dated October 22, 1900, was duly executed and delivered by the defendant to the plaintiff's decedent on or about October 22, 1900, in consideration of the sum of $101.15 paid on said date by the plaintiff's decedent to the defendant. The plaintiff attaches hereto and makes a part hereof, marked exhibit "A," a true and correct copy of said policy of insurance. The plaintiff avers that the decedent has always from the time of the making of the policy of insurance, a copy of which is hereto attached, marked exhibit "A," performed all things on his part to be fulfilled, according to the tenor and effect of said policy; that William J. White, the party insured for the benefit of the plaintiff herein, died November 6, 1902, in the city of Pittsburg, whilst the said policy was in force; and that the plaintiffs herein did promptly furnish unto the said defendant good and sufficient proof of the death of the said William J. White; that, although heretofore so requested, defendant did not, and has not, paid unto the said plaintiff herein, or to any one for her, the sum of $2,500, or any part thereof, and said sum, together with lawful interest thereon is now due.
Mr. Ferguson: Defendant's counsel object, in so far as the offer of the policy is concerned, for the reasons, first, that policy contains indorsed on its face the following language:
"See copy of application inside, and if errors or omissions are found therein, note the same and return the policy to the Illinois Life Insurance Company, Chicago, Illinois, for correction." That the paper produced does not contain the application, nor is there any offer to account for its absence.
Second, the policy on its face provides that it shall not take effect until the first premium shall have actually been paid in cash during the lifetime and good health of assured, and no offer is made to prove the necessary fact of the good health of the assured at the time of the payment of the first premium.
Objections overruled. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [3]
Counsel for defendant offer to show that William J. White, prior to the taking of the policies in suit, was an applicant to other insurance companies and was rejected on the ground that he was not an insurable risk; this for the purpose of showing the fact of rejection, and also showing the fact of the knowledge of the decedent.
The Court: How is that material in this case?
Mr. Ferguson: Because it tends to show that he was not in good health at the time.
Mr. Young: That offer is objected to for the reason it is incompetent, irrelevant and immaterial, and that it shows nothing in regard to the state of the decedent's health at the time the policies in these suits were taken out. (Offer withdrawn.)
Mr. Ferguson: These depositions are offered for the purpose of showing the rejection of William J. White as an applicant for life insurance in the Mutual Benefit Life Insurance Company of Newark, N.J., to be followed by evidence that at the time of the application to the defendant company for the insurance sued on, he represented that he never had been rejected as an applicant for life insurance.
Mr. Young: This offer and the depositions are objected to for the reason that there is nothing in these depositions to identify the William J. White dealt with in the application as the one who took out the policies in question in this case, there being no effort made to identify them as the same by means of signatures or in any other way; and for the further reason that there is nothing to show that William J. White, the decedent, ever received any notice from this company of such rejection of that application, if they were the same, and for the further reason that there is nothing in the plaintiff's case which shows that he made any such representations as the defendant has stated.
The Court: Do you mean that there is no allegation in the affidavit of defense?
Mr. Dalzell: There is nothing on the face of the contract of insurance which is in evidence here which would invalidate it by reason of these representations which counsel now says were made to the defendant.
Objection sustained. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [4]
5. The court erred in overruling the following offer of defendant and sustaining the exception of plaintiffs thereto:
In the case of No. 388, February Term, 1903, counsel for defendant offer in evidence the deposition of the same parties as in the other case, to wit: Edward L. Dobbins and James C. Young, for the purpose of showing that William J. White had made an application for insurance on his life to the Mutual Benefit Life Insurance Company of Newark, N.J., and he had been rejected by that company, this to be followed by evidence that when the application for the policy in this case was made to the defendant company, he was verbally interrogated by the examiner of the company, among other things, as to whether or not he had ever been an applicant for life insurance in any other company, in which application he had been refused, and that he answered, "No," or words to that effect; this for the purpose of showing that having undertaken to answer as to a matter material to the contract, as a preliminary thereto, he answered falsely, and for the purpose of avoiding the contract on account of such answer.
Counsel for plaintiffs object to the foregoing offer for the reason that it is incompetent, irrelevant and immaterial, by reason of the fact that there is nothing in the depositions to connect William J. White, the decedent, whose heirs are the plaintiffs in ...
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