Hermany v. Fidelity Mut. Life Ass'n

• Decision Date: 03 October 1892
• Docket Number: 234
• Citation: 24 A. 1064,151 Pa. 17
• Parties: Hermany et al. v. Fidelity Mut. Life Ass'n, Appellant
• Court: Pennsylvania Supreme Court

24 A. 1064

151 Pa. 17

Hermany et al. v. Fidelity Mut. Life Ass'n, Appellant

No. 234

Supreme Court of Pennsylvania

October 3, 1892

Argued February 6, 1891

Appeal No. 234, Jan. T., 1891, by defendant, from judgment of C.P Lehigh Co., Sept. T., 1888, No. 24, on verdict for plaintiffs, Sarah Hermany et al.

Assumpsit on policy of life insurance.

On the trial before ALBRIGHT, P.J., the evidence was to the following effect: Lewis Hermany, on Jan. 6, 1887, took out a life policy payable to plaintiffs his wife and children. Notice of death was given the president of defendant company in writing, as required by the by-laws of the company. Mrs Hermany answered the questions in a blank furnished by defendant. Drs. Shade and Erb also answered questions propounded to them. The president of the company said to one of plaintiff's attorneys that the company was satisfied with these proofs and might require some additional ones on a blank to be furnished him. In Mrs. Hermany's answer she stated that decedent, in October, 1886, went to Buffalo to see Dr. Pierce.

Defendant offered evidence which tended to prove that the assured Lewis Hermany, made statements in his application for the policy which were false; that in his application he had stated that he had not consulted a physician during the preceding ten years, when in fact he had consulted Drs Graver and Rowe, the latter a physician attached to Dr. Pierce's Medical Institute; that he had stated that he was in good health when in fact he was suffering from disease of the urinary and genital organs.

Defendant offered in evidence pension application of Lewis Hermany. Objected to as incompetent and irrelevant.

By the Court: It appearing that the policy was issued on Jan. 6, 1887, and that the loss is payable to the wife of the insured and their children, and, in the event of their prior death, to revert to the insured; and it appearing that the wife and children survive the insured, and the contract, therefore, for all practicable purposes being between the company and the wife and children, the subsequent statement made by the insured when he applied for a pension in 1888, in other words, his subsequent declarations, cannot be received to affect the beneficiaries in the policy. Exception. [13, 14]

Defendant also offered in evidence the pension examination by Dr. Shade. Objected to, objection sustained, for same reason as before, and exception. [15]

The court charged in part as follows:

"Now, as I have said to you, that certain proofs were required to be furnished before the claimants had a right to sue, I instruct you, gentlemen, that the proofs that were furnished, and that are in evidence here, were sufficient to entitle the plaintiff to sue -- it is in my opinion not a question for the jury to decide whether sufficient proofs had been furnished to entitle the plaintiffs to bring this suit. [16] . . . .

"There is an act of assembly of this state, which has a bearing upon life insurance policies, viz.: The act of 1885, which was in force at the time this insurance was made, and so far as its terms apply to this contract and the controversy before you it governs. It provides that, when 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 relates to some matter material to the risk. In the contract of insurance in this case, it is provided that the insured waives the provisions of any statute which might affect the contract of insurance; in other words, the insured is made to say that he will stand by what he promised in his contract of insurance even although an act of assembly provides to the contrary -- that he waives the act of assembly. In the opinion of the court, that stipulation is not binding. The court is of the opinion that it would be contrary to public policy to permit this statute, which was made for the benefit of the insured, and possibly also for insurance companies, to be disregarded by parties who enter into contracts of insurance, and so I instruct you, that that clause of the contract is invalid, and that the act of assembly is to govern. [17] . . . .

"It is alleged, as has already been alluded to, that he had the urinary disorder, uraesemia, which it is said consists of excessive acid in the urine; that he had local disorders, excoriations, and it is claimed that the statements of the deceased in that respect were not true as to these matters. Gentlemen, we instruct you that if they were made in good faith by the deceased, even although they were not true, that that alone cannot prevent a recovery here. While the policy and application say that all the answers of the insured shall bind him, whether made in good faith or not, I hold that the act of 1885, which says that the insured shall not be prejudiced by misstatements made by him in good faith, applies to the statements I am now referring to, and, if it is found by you that they were not material -- and the question is referred to you whether they are material or not -- then you can say that they do not prejudice these plaintiffs or prevent a recovery. [18] . . . .

"If Lewis Hermany, when he said he did suffer from these disorders which the defendant says he did suffer from, and you find that he was afflicted with them, and even although he answered untruthfully, still, if you find that he did it honestly, and not with any intention of concealing the truth, or of stating an untruth, and you further find that it did not affect his health, nor cause his death, then you can say that the plaintiffs may recover, and that notwithstanding the untrue statement. [19] . . . .

"In the original proofs of death there is a statement by Mrs. Hermany that within the last five years, that is, five years before the time the proof was made, from August, 1888, her husband had consulted six or seven physicians, Shade, Graver, Erb, Pepper, DaCosta, etc. That answer in itself does not show that the statement of the insured about the physicians was untrue, because those five years include the one year and odd months, between the insurance and the death of the insured. He might have consulted those doctors after the insurance. She always says he went to Buffalo in October, 1886, to see Dr. Pierce. This statement of the widow is to be taken as a declaration made by her against interest. But she alone is not suing here. She and her children are suing here, and this statement is susceptible of explanation, and it is to be taken along with the other evidence in the case, and, if you find that this and the other evidence shows a breach of the policy, then the plaintiff cannot recover. If otherwise, it would not prevent the recovery by the plaintiffs." [20]

Defendant's points were as follows, inter alia:

"1. The insured, the said Lewis Hermany, deceased, in his application to the defendant for the policy in suit, warranted that he had no usual medical attendant, and that he did not consult or obtain the advice of any other medical man within the ten years preceding the making of said application. The uncontradicted evidence shows that he, the said Lewis Hermany, consulted Dr. J. D. Graver, a medical man, within the ten years preceding the making of said application. The plaintiffs cannot, therefore, recover, and your verdict will be for the defendant. Answer: Negatived. It is referred to the jury whether he consulted a physician as explained in the general charge." [1]

"2. The uncontradicted evidence shows that the insured, the said Lewis Hermany, consulted Dr. G. A. Rowe, a medical man of Buffalo, N.Y., within ten years immediately preceding the making of his said application for the policy in suit. The plaintiffs cannot therefore recover, and your verdict will be for the defendant." Negatived. [2]

"3. The uncontradicted evidence shows that the said Lewis Hermany consulted Dr. D. S. Shade, a medical man, within the ten years preceding the making of his said application for the policy in suit. The plaintiffs cannot, therefore, recover, and your verdict will be for the defendant." Negatived. [3]

"5. The...