Suravitz v. Prudential Ins. Co. of America

• Decision Date: 03 June 1918
• Docket Number: 87
• Citation: 104 A. 754,261 Pa. 390
• Parties: Suravitz v. Prudential Insurance Company of America, Appellant
• Court: Pennsylvania Supreme Court

104 A. 754

261 Pa. 390

Suravitz v. Prudential Insurance Company of America, Appellant

No. 87

Supreme Court of Pennsylvania

June 3, 1918

Argued February 25, 1918

Appeal, No. 87, Jan. T., 1917, by defendant, from judgment of C.P. Lackawanna Co., Oct. T., 1910, No. 505, on verdict for plaintiff, in case of Jacob Suravitz v. Prudential Insurance Company of America. Reversed.

Assumpsit on a policy of life insurance. Before MAXWELL, P.J. specially presiding.

The facts appear in the opinion of the Supreme Court and in Suravitz v. Prudential Insurance Company, 244 Pa 582.

Verdict for plaintiff for $2,040 and judgment thereon. Defendant appealed.

Errors assigned were in refusing a new trial, answers to points, instructions to the jury and rulings on evidence.

The judgment is reversed with a venire facias de novo.

A. A. Vosburg, for appellant. -- The testimony of the witness Stephen Glinsky was material to the plaintiff's case and in view of his contradictory statements, he was so unreliable that the lower court should have granted a new trial: Smith v. Times Pub. Co., 178 Pa. 481; Mix v. North American Co., 209 Pa. 636; Gilmer v. Kennon, 131 U.S. 22; Stephens v. Gunzenhauser, 27 Pa.Super. 417; Peterson v. Atlantic City R.R. Co., 177 Pa. 335; Schrimpton v. Bertolet, 155 Pa. 638; Com. v. Ruddy, 19 Pa. C.C. 321; Shanahan v. Agricultural Ins. Co., 6 Pa. Superior Ct. 65; O'Bryan v. Bowers, 10 Pa. C.C. 254.

The burden was upon the plaintiff to satisfy the jury by clear and satisfactory evidence that the answers to the medical questions in the application were incorrectly written by the agent and the court should have unqualifiedly so charged the jury as requested in defendant's third point; and it was not sufficient to instruct the jury that the plaintiff must establish the fact by a fair preponderance of the testimony: Penna. R.R. Co. v. Shay, 82 Pa. 198; Williamson v. Carpenter, 205 Pa. 164; Keystone Axle Co. v. Leyda, 188 Pa. 322; White v. Black, 14 Pa.Super. 459; Thorn, McFarlane & Co. v. Warfflein, 100 Pa. 519; Young v. Edwards, 72 Pa. 257; Jessop v. Ivory, 158 Pa. 71; Replogle v. Songer, 19 Pa.Super. 442; Sutch's Estate (1), 201 Pa. 305; Ogden v. P. & W.C. Traction Co., 202 Pa. 480; Miller v. Wise, 33 Pa.Super. 589; Miller v. Interstate Casualty Co. of N.Y., 17 Pa.Super. 360; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Keeler v. DeWitt, 24 Pa.Super. 463; Beckett v. Allison et al., 188 Pa. 279; Claybaugh v. Goodchild, 135 Pa. 421; Guernsey v. Froude, 13 Pa.Super. 405.

The trial judge erred in charging the jury that the burden of proof was upon the defendant to show that the plaintiff fraudulently substituted another woman who impersonated his wife for the medical examination of the defendant: Quirk v. Metropolitan Life Ins. Co., 12 Pa.Super. 250.

It was error to refuse to charge the jury as requested in defendant's thirteenth point to the effect that even if the agent did not correctly write down the answers to the questions relating to the health of the insured, as the insured had a copy of the application, it was the duty of the insured to call the attention of the company to any incorrect answers therein; and as they failed to do so, the plaintiff was estopped from taking advantage of the insurance policy obtained upon the basis of this application: Rinker v. AEtna Life Ins. Co. of Hartford, 214 Pa. 608; N.Y. Life Ins. Co. v. Fletcher, 117 U.S. 519; Greenfield's Est., 14 Pa. 489.

Charles P. O'Malley, of Knapp, O'Malley, Hill & Harris, with him P. L. Walsh, for appellee. -- The refusal of the court to grant a new trial was not an abuse of discretion.

The answer of the court to defendant's third point complained of in the second assignment of error was right: Fidelity Title & Trust Co. v. Metropolitan Life Ins. Co., 64 Pa.Super. 361; Smith v. Farmers & Mechanics Mutual Fire Ins. Co., 89 Pa. 287.

The court properly charged the jury that the burden of proving the fraudulent substitution of another woman for the insured at the medical examination was upon the defendant: Pocono Spring Water Ice Co. v. American Ice Co., 214 Pa. 640; Quirk v. Metropolitan Life Ins. Co., 12 Pa.Super. 250; Feinberg v. New York Life Ins. Co., 256 Pa. 61; Clark v. Metropolitan Life Insurance Co., 62 Pa.Super. 192; Miller v. National Casualty Co., 62 Pa.Super. 417; Fisher v. Life Asso., 188 Pa. 1.

The refusal of the court to affirm the defendant's third point for charge as complained of in the fourth assignment of error was proper, as the point asked in effect for binding instructions in favor of the defendant: Suravitz v. Prudential Insurance Co., 244 Pa. 582; Kister v. Lebanon Mutual Life Ins. Co., 128 Pa. 553; Mullen v. The Union Central Life Ins. Co., 182 Pa. 150; Josiah Dowling v. Merchants Ins. Co., 168 Pa. 234; Lueders' Executor v. Hartford Life & Annuity Ins. Co., 12 Fed. Repr. 465; Michigan Mutual Life Ins. Co. v. Leon, 138 Indiana 636; Donnelly v. Cedar Rapids Ins. Co., 70 Ia. 693; Kansas, Etc., Ins. Co. v. Central National Bank of Ellsworth, 57 Pac. Repr. 524; German Ins. Co. v. Horan, 15 Ky. L. Rep. 208; Baker v. Ohio Farmers' Ins. Co., 70 Mich. 199; O,Rourke v. John Hancock Mutual Life Ins. Co., 30 N.Y.S. 215.

Before BROWN, C.J., POTTER, STEWART, MOSCHZISKER and WALLING, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

This is an action on a policy of insurance issued by defendant company on the joint lives of Jacob Suravitz and Mary, his wife; the latter died and the former brought the present suit, wherein he recovered a verdict upon which judgment was entered in his favor; defendant has appealed.

There is no dispute about the fact of Mary Suravitz's death, or that plaintiff furnished satisfactory proofs thereof. The contest turns upon two controlling defenses: (1) Alleged misrepresentations, in the application for the policy, by plaintiff and his wife of the latter's physical condition. (2) Fraudulent substitution of another woman, in good health, for plaintiff's wife, at the examination made by defendant's medical examiner. In most part, the errors alleged concern rulings on evidence and instructions to the jury relevant to the issues thus raised.

Since there have been three trials of the present cause already and it now becomes our duty to order a fourth, we shall discuss the several assignments of error more elaborately than might otherwise be necessary, hoping in this way to aid in bringing the case to a final determination.

A man named Glinsky testified that he knew Mary Suravitz and actually saw her undergo examination by the insurance company's doctor. It was alleged in an affidavit filed by defendant, in support of a motion for a new trial, that, after verdict, this witness had stated his testimony in regard to the examination of deceased was false. A hearing was fixed to take depositions, and Glinsky, while he admitted having stated what was averred in the affidavit, swore all his evidence at the trial was correct and true. We agree with the court below that the man under discussion is "not a very reliable person"; and, considering the trial judge's belief that "Glinsky was an important witness for the plaintiff," that tribunal might well have refused to enter judgment on the verdict. However, in view of the fact that the testimony in question is merely cumulative, we are disinclined to hold the refusal of a new trial an abuse of discretion constituting reversible error. The first assignment is overruled.

Consideration of the second assignment calls for preliminary notice of certain relevant facts and principles of law. The application attached to the policy contains questions addressed to Mary Suravitz and answers thereto, inter alia, as follows: "Q. Are you in good health? A. Yes." "Q. Have you, so far as you know, ever had any serious illness or disease? A. No." If believed, the evidence produced by defendant, professional and otherwise, shows rather conclusively that, when these answers were made, Mrs. Suravitz was, and for some time had been, suffering from a pronounced form of heart disease, and plaintiff admits that his wife had, a short while previous to the examination, been ill in the hospital with pneumonia; but plaintiff contends, as he did in his statement of claim and at trial, that, at the time the application was filled out, Mrs. Suravitz was unable to speak, understand, read or write the English language, that his own knowledge thereof was very limited, that he acted as interpreter, that the agent of the insurance company wrote down the answers, and, finally, that, in so doing, the latter "falsely, fraudulently, negligently, mistakenly and carelessly" inscribed answers other than those dictated to him. For example, plaintiff denies his wife answered "Yes" to the first and "No" to the second of the above recited questions; to the first, he avers "Mary Suravitz made answer that, in so far as she knew, she was in good health, or words to that effect," and to the second, "she replied she had not any serious illness that she knew of, [but] that in 1908 she was ill and was in Lackawanna State Hospital [with] what doctors told her was a severe cold, but she understood that she was cured and better." The defendant, in its pleadings and at trial, denied all allegations of fraud or mistake, on the part of its agent, in connection with the application or otherwise.

The contract in suit provides that the answers in the application are representations, not warranties; therefore, these issues, among others, arose: (1) Did Mrs. Suravitz have heart disease? (2) If so, did she know it when she made the representations to the insurance company concerning her health?

When the company put in its testimony tending to show that Mrs Suravitz had the disease in question, this evidence, together with the...