Nydes vs. Home Guards of America.

In the application of Peter Nydes, the insured, for membership, it is provided: "1 agree that any untrue or fraudulent statement made herein or to the medical examiner * * * shall forfeit all rights accruing under any certificate that may be issued to me, unless otherwise stipulated therein. I warrant the truthfulness of the foregoing statements and on my honor and to the best of my knowledge and belief will make truthful answers to the questions of the medical examiner. * * In the benefit certificate we find the following: * * Peter Nydes has been admitted to membership * and in consideration of the statements and warranties contained in the application for membership and medical examination, which are hereby made a part of this * certificate, and in compliance with all the laws, rules and regulations ** * which are hereby agreed to be the parties herein named and made a part of this contract, is entitled to the benefits

* *

* *

**

*

The defense is that the insured made false and fraudulent answers in his medical examination as to (1) whether he was then in good health or ever had consumption; (2) whether any of his family or near relatives had had consumption; (3) whether he ever had any personal injury or accident or undergone any surgical operation; (4) whether he then or ever used intoxicating liquors daily or habitually; and (5) whether he answer truthfully the question "For what have you had medical advice during the last five years?”The fifth question of medical advice naturally falls in, and will be considered, with question No. 1. We will take up and dispose of these questions in the order stated above:

First. Did the insured make false or fraudulent answers as to whether he then had consumption, the state of his health, and previous medical advice? It is unnecessary to burden the record by quoting all the questions and answers, and it will suffice to say that he stated that his health was then good, that he never had consumption, and had medical advice for nothing for the last five years. Were all those answers falsely made? Peter Nydes, the insured, signed his application for membership, and certified to the correctness of his answers to the questions of the Medical Examiner on August 4, 1911. His certificate of membership was dated August 10, 1911, and he died of tuberculosis on March 22nd, 1912. The evidence of Dr. Finkelpirl, the insured's family physician, and called by the plaintiff, was that he examined Peter Nydes at his request, for a troublesome cough, about Christmass of 1911, but this was more than four months after his application for membership, and then found that he had tuberculosis, with lungs at the stage of cavity formation. The evidence of Dr. Alexander, physician to the State Tuberculosis Dispensary of the City of Pittsburgh, is that the insured went to that institution early in June, 1911, two months before he obtained his beneficiary certificate; that he examined him on June 7th and diagnosed his malady as that of a far advanced case of pulmonary tuberculosis, and made known to him then the nature and seriousness of his condition. A memorandum was produced by the doctor showing that he had had seven consultations with the insured, the first one on June 7th, 1911, and the last in January, 1912, four of which were prior to his application for membership and one of these was as late as August 2, 1911, two days before that application, and the others were subsequent thereto. The proofs of death show that pulmonary tuberculosis was the immediate cause of death.

Are we justified in holding as a matter of law that under the evidence of Dr. Alexander there cannot be a recovery in this case for the reason that the deceased was not in good health and did have tuberculosis at the time of his application for membership? We do not think so. He is the only witness that testified that the insured was examined by him, and that he was in poor health from tuberculosis. That witness testified that when he

Nydes vs. Home Guards of America.

made his examination in June, 1911, he found him in the last stages of tuberculosis, meaning that the disease was approaching the end of its course and that death might be expected in a reasonably short time. He also testified that he had been affected by the disease for at least two years prior to that examination, or as far back as June, 1909, and that he informed him of the nature of his disease and that he would probably not get well. Dr. King, a witness called by the plaintiff, testified that he examined the insured on his application for membership in an association called the Modern Woodmen of America, in December, 1910; that he did not have tuberculosis at that time, and that his physical condition then was good. This was about seven months prior to the examination by Dr. Alexander, and approximately one year and a half after the time when he was probably first affected by the disease according to Dr. Alexander's testimony. Dr. Sleese, called by the plaintiff, testified that he examined the insured on his application for membership in the two associations involved in this trial, on August 4, 1911; that he did not then have tuberculosis, and that he then considered him a good risk. At the very same time when, according to Dr. Alexander, the insured was in the last stages of tuberculosis, Dr. Sleese said he did not have that disease and was considered a good risk. Mrs. Davenport, who solicited the insured to become a member of the defendant association, testified that when he joined the two associations involved he appeared to be a man of good physical appearance. Others testified more or less as to his physical condition just before his last illness. In the conflict of the testimony of Dr. Alexander with that of the others just given, surely the evidence of the former was a matter for the jury, and not for the Court. As to the fifth question, which we have said is involved in the first, viz: whether the insured answered truthfully as to his having had medical advice during the five years previous to his medical examination, likewise involves the evidence of Dr. Alexander, because if it is true as stated by him, that he examined the insured before his membership, and also informed him that he then had tuberculosis, the question was material, the answer false, and their could be no recovery, and we so said to the jury. But we could not say as a matter of law, in view of the evidence opposing that of the doctor relating to the health of the insured, that the insured had obtained medical advice from him, but left that question to the jury. In this connection it was proved by the defense, and not denied by the plaintiff, that the insured had his leg broken, probably on July 30, 1910, when he had the medical advice of Dr. Straub and his brother, Dr. Nydes. If we are correct in our view as to the materiality of that injury, to which we will refer later, the fact that the insured did not give the names of Dr. Straub and Dr. Nydes becomes immaterial.

Second. Was the answer of the insured, as to whether any of his family or near relatives had had consumption, falsely and fraudulently made? His answer to that question was "No." The uncontradicted evidence is that Jacob Nydes, a brother of the insured, was sent by the Pittsburgh Department of Charities to Marshalsea, in this County, on July 6, 1896, where he died of pulmonary tuberculosis on the 28th day of the same month. The record of the Department of Charities showed that the patient's occupation was that of a salesman; that he last worked at No. 2715 Penn Avenue, Pittsburgh, being the same place as given by Peter Nydes, the insured, as his post office address in his application, and as the residence of the plaintiff by her testimony on the trial; that he lived at No. 3055 Penn Avenue, where his mother, Esther Nydes, lived; that notice of his death was to be sent to her, which was done; that his body was taken by his friends, and from the evidence of the Sexton of the Synagogue that application was made to him by the insured about seven or eight years ago for the burial of a brother,

Nydes vs. Home Guards of America.

and that he was buried from' Penn Avenue, seven or eight years ago, in Washington Cemetery at McKees Rocks. Thus the undisputed testimony is that Jacob Nydes, a brother of the insured, died of tuberculosis just five years before the latter applied for insurance. Can we say as a matter of law that there can be no recovery under those undisputed facts, in the absence of any proof of knowledge on the part of the insured as to the cause of his brother's death? The evidence discloses no such knowledge on the part of the insured, unless we should hold that knowledge is to be inferred from the fact that his brother did die of that disease. We instructed the jury that the answer of the insured to that question was material to the risk and that plaintiff could not recover if they found that the insured knew of the cause of his brothers death. That was the question to be decided, and we could not do otherwise that submit it to the jury.

Third. The insured was also asked in his medical examination whether he ever had any personal injury or accident, or had undergone any surgical operation, to whch he answered "No." It was not disputed by the plaintiff that his leg was broken between the knee and the ankle, about June 30, 1910, something like one year and three months before his medical examination, on which occasion he was attended once by Dr. Straub and thereafter by his brother, Dr. Nydes. While the evidence in this regard was undisputed, we submitted the materiality of his answer to the jury, being in doubt ourselves, with the instruction that if they found it was material to the risk, the plaintiff could not recover. While Dr. Straub testified that fractured tibia was always serious, there was a good recovery in this case which implied a sound leg and nothing dangerous to life. Some three other physicians testified that a broken leg from which there was a good recovery would have no effect on the duration of life. A number of other witnesses testified to a complete recovery from the effects of the injured leg. In submitting that question to the jury we believe we were justified by the following cases: Life Assn. of Pa. vs. Gillespie, 110 Pa., 84; Rhode vs. Ins. Co., 132 Mich., 503; Smith vs. Ins. Co.; 183 Pa., 504; Caruthers vs. Ins. Co., 108 Fed., 487; Rigby vs. Ins. Co., 240 Pa., 332; Barnes vs. Life Assn., 191 Pa., 618; Lutz vs. Ins. Co., 186 Pa., 527; and Hermany vs. Life Assn., 151 Pa., 17. If we were right in submitting that question to the jury, the verdict was a finding against the materiality of the answer, and if his answer was immaterial the fact that he had obtained medical advice in relation to that injury was equally immaterial.

Fourth. In his medical examination he was asked if he then or ever used intoxicating liquors daily or habitually, to which he answered "No." The evidence on this point was conflicting, and we submitted it to the jury. We doubt now that there was sufficient evidence to show either a daily or an habitual use of liquor in a legal sense. Ins. Co. vs. Terry, 37 Tex., 486; Life Assur. Assn. vs. Bank, 126 Fed. Rep., 360.

It is contended that the assured made false answers to the question, "How many brother have you had?" when he said "four," and gave the respective ages and the state of health of each. We fail to find any evidence of the falsity of that answer. The defense undertook to prove it by the plaintiff, but her evidence failed to show the number of brothers the insured had. Then the defendant undertook to prove the fact by calling Bennett Miller, but he possessed no knowledge on the subject.

We are of opinion that the case was one for the jury, and that we would not have been justified in directing a verdict for the defendant, and, therefore cannot now enter judgment no obstante veredicto. The motion is overruled.

NO. 2.

Insurance
Custom.

Nydes vs. Royal Neighbors of America.

Intoxicating Liquors · Total Abstinence.

Habit, Practice or

The insured in a beneficial insurance policy answered "none" to the following question: Do you ever use intoxicating liquors? The company refused to pay and at the trial, the jury returned a verdict for plaintiff. On motion for judgment n. o. v.

Held: That this question is not equivalent to the question whether the applicant was a total obstainer, but means habit, practice or custom, and under the evidence in the case the question was one for the jury. Motion overruled.

Sur motion by the defendant for judgment non obstante veredicto. No. 2840 October Term, 1912. C. P. Allegheny County.

Thos. M. & Rody P. Marshall, A. C. Stein and A. C. Teplitz, for plaintiff. Langfitt & McIntosh, for defendant.

HAYMAKER, J., September 10, 1915. This case was tried with that of the same plaintiff vs. Home Guards of America, No. 2242 October Term, 1912, in which latter case we herewith file an opinion covering all the questions involved in this case, with the exception of that relating to the use of intoxicating liquors. The medical examination and answers of the nsured were made in both cases on the same day, before the same physician, and the benefit certificates were issued in the same month. The questions and answers relating to the health and physical condition of the insured, whether he had, or any of his brothers had had, consumption; whether he had previously consulted a physician or physicians, and whether he ever had any personal injury, are practically the same in each case. In the case against the Homeguards of America the question relating to the use of intoxicating liquors was whether the insured used them daily or habitually. In the present case the question asked the insured was: "Do you ever use intoxicating liquors?" to which he answered "None." We do not think this is equivalent to the question whether the applicant was a total abstainer, but means habit, practice or custom, and under the evi. dence in the case the question was one for the jury.

The motion for judgment non obstante veredicto is overruled.

Partition

Doverspike vs. Keown et al.

-Plea in Abatement-Demurrer to-Interest-Verdict.

A plea in abatement was filed in a partition proceedings on the ground that the parties were interested as tenants in common in another farm than the one in question but that the interests of some of the parties were different in the two properties. A demurrer to his plea was overruled and issue joined.

At the trial defendant proved the contention raised by his plea in abatement. Verdict for defendant. Motions for judgment for plaintiff n. o. v. overruled and new trial refused.

Sur motion for new trial and judgment non obstante veredicto. No. 503 April Term, 1912. C. P. Allegheny County.

Martin Hunter and James G. Montgomery, for plaintiff.

Stonecipher & Ralston, D. M. Alston and Trimble & Chalfant, for defendants.

SHAFER, P. J., July 8, 1915.—The proceeding is an action for partition, the plaintiff's interest being that of tenant by the courtesy in 5/60 of the land described in the process and writ which is for a tract of land in Ross Township containing about 41 acres. To the declaration in this case, after certain proceedings which it is not necessary here to discuss, a plea was entered in abatement of the writ, that the parties plaintiff and defendant were owners as tenants in common of another farm in addition to the Ross Township property, situated in McCandless Township in Allegheny County which became vested in them by descent from the same ancestor, the plea showing however that some of the parties had a different quantity of interest in one farm from what the same party had in the other. To this plea the plaintiff demurred and the demurrer was overruled. The plaintiff thereupon replied to the plea and issue was joined, which is the issue on trial in this case.

On the trial the defendants having the affirmative of the issue put in evidence a deed to John Keown, the common ancestor, and two of his brothers for a tract of over one hundred acres of land in McCandless Township, the deed being made some 70 or 80 years ago, or more, and showed the fact that John Keown was vested of 43 acres of this land at and before the time of his death; and also gave in evidence the record of another action of partition begun by William C. Doverspike, the plaintiff herein, for the same 43 acres of land in McCandless Township, against the same defendants as in the present case, in which the plaintiff alleged the ownership of the land by these proceedings and its descent to them by John Keown. The defendants thereupon put in evidence certain deeds in which John Keown was a party, concerning the lands in McCandless Township, but it did not appear how the land had been divided so that John Keown had 43 acres in severalty. He also gave in evidence a quit claim deed made by John Keown's executors, after his death, to a sister of John Keown, for a part of the original tract of land. The plaintiff also announced his intention of discontinuing the other proceeding for partition of the McCandless Township land, the record of which was put in evidence by the defendants. When the plaintiff demurred to the plea in this case and when he replied to it and when he brought his separate action for partition for the land in McCandless Township, he did so upon the theory that interests of some of the tenants in common, being somewhat different in the two pieces of land, they could not be partitioned in the same proceeding. Upon the trial this position was abandoned and the claim was made that because the deed made many years ago to John Keown and his brothers showed a larger tract of land than the 43 acres, and did not appear how this was divided and how John Keown came to have only 43 acres of the land, therefore the 43 acres ought not to be included in this partition.