O'Hara v. U. B. Mut. Aid Society
Decision Date | 28 April 1890 |
Docket Number | 73,74 |
Citation | 134 Pa. 417,19 A. 683 |
Parties | J. F. O'HARA v. U. B. MUT. AID SOCIETY |
Court | Pennsylvania Supreme Court |
Argued April 15, 1890
Appeal of O'Hara Reported at 19 A. 684.
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LUZERNE COUNTY.
Nos 73, 74 January Term 1890, Sup. Ct.; court below, Nos. 187 188 May Term 1882, C.P.
On March 28, 1882, two actions of debt on policies of insurance were brought against the United Brethren Mutual Aid Society. At the time of the trial reported here, the plaintiff in one action was John F. O'Hara; and in the other, John F O'Hara, administrator of Mary T. O'Hara, deceased. Issue.
At a second trial of the two causes together on March 10, 1887 verdicts were rendered for the plaintiffs. The judgments entered thereon, however, were reversed by the Supreme Court, with venires de novo, on April 30, 1888: U. B. Mut. Aid Soc v. O'Hara, 120 Pa. 256.
At the third trial of the cases, together, on October 11, 1889, it was made to appear that on April 23, 1881, Bernard O'Hara, the father of John F. O'Hara and the husband of Mary T. O'Hara, obtained two certificates of membership or policies of insurance from the defendant company, each for $1,000, one for the benefit of his wife, and the other for the benefit of John F. O'Hara. The policies were alike in their provisions and contained the following covenant:
"It is also understood and agreed by the person named in this certificate that if the proposals, answers, declarations and representations, made by the aforementioned member in his application for membership, and which are hereby made part and parcel of this certificate as if duly herein recited, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case this certificate shall be null and void."
Testimony was introduced by the defendant tending to show that, in his applications for the certificates, the assured had falsely represented that his habits of life were temperate, that he had never been affected with asthma, or dropsy, or other disease, that he had not been attended by a physician within the year previous to his application, and that he had no family physician. Rebutting testimony upon these subjects was adduced by the plaintiff.
At the close of the testimony, the court, after stating the covenant quoted, supra, proceeded to charge the jury as follows:
The application referred to in that covenant contains certain questions and answers. The insured, Mr. O'Hara, warranted the truthfulness of those answers. It is not a question whether he intentionally defrauded the company, or whether he knowingly made false representations as to matters of fact to which the questions related; but, whether or not the answers were true. For if any answer to any of those questions were untrue, the plaintiff cannot recover, although the answer may not have related to any matter or condition of health which caused the death of Bernard O'Hara, and although he may have made the answers honestly; so that, you will observe, the question is not one of fraud, but of the truthfulness of the answers, which, as we have said, was warranted by the covenant of the assured.
We say to you that it is incumbent upon the defendant to show that his answer in this respect is untrue. If it is shown that fact to your satisfaction, then it would prevent a recovery by the plaintiff here, although it might not make any very material difference whether he was 59 or 60 years of age. It is a question of contract.
Did Dr. Whitney, within a year prior to April 22, 1881, attend upon Bernard O'Hara? If he did, then there could be no recovery in either of these cases. And it is not important, so far as this particular question is concerned, whether the disease for which he was then called was one which subsequently caused the death of the insured or not. . . .
Defendant's counsel request us to charge you upon the following points:
1. That the plaintiff has not shown such a case in pleading and evidence as is necessary to entitle him to recover.
Answer: We answer that point in the negative.
9. The evidence being plain and direct that Bernard O'Hara had medical attendance within a year prior to his making application for membership in the company defendant, and there being no evidence presented that amounts to a contradiction of this, the plaintiff cannot recover.
Answer: We answer that point in the negative. We cannot say that there is no evidence in contradiction, and the credibility of the witnesses is for you.
10. Under all the evidence in the case, the verdict...
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