Dougherty v. Metropolitan Life Insurance

Plaintiff is the sister of Francis Farley, deceased. Prior to his death, and on September 28, 1891, she procured Farley's life to be insured for her benefit, with defendant. Subsequently, and on the 18th day of April, 1893, she applied for a further insurance upon Farley’s life. The application was accepted; the policy issued, and delivered June 19, 1893. Plaintiff has paid premiums upon both policies, as required by defendant, since their issuance. By the terms of the policy, the insured was required to be in sound health at the time of delivery, else it would not take effect. There was no claim that any defect existed in the first policy. As to the second, it appeared that Farley was-not in sound health when the policy was delivered; and the, court, upon the trial, dismissed the complaint as to it, but held that plaintiff was entitled to recover the premiums paid, thereon. Farley died July 22, 1893. The proof upon the part of plaintiff tended to establish that, shortly after his death, plaintiff procured a blank upon which to fill out proofs of loss,-and that an agent of defendant took the same, together with the policies and papers, promising to fill out and present the same to defendant. By the| terms of the policy, no suit could be commenced against the com-¡ pany before the lapse of ten days after filing, in the home office, of the company, proofs of death upon the forms furnished by it; nor can an action be maintained against the defendant after six months from the date of death of the insured. The action was not begun within this time. But plaintiff gave evidence tending, to establish that defendant retained the proofs of loss and her-other papers until after the six months had expired, before they returned them to her or rejected her claim. Defendant denied this,, claiming that it had rejected the claim, notified plaintiff of its re-; jection, and returned her papers within the six months. Upon' this testimony, the court submitted this question to the jury, whether defendant retained possession of the papers as claimed by’ plaintiff, and, if so, did such act upon their part amount to a. waiver of this provision of the policy, charging that both facts' must be found in plaintiff’s favor before she was entitled to recover. The evidence warranted the submission, and the form of it was unexceptionable. The jury found in favor of plaintiff, and, unless some error occurred upon the trial, the judgment appealed from must be affirmed.

It is insisted that the court committed an error in permitting plaintiff to introduce the policy., over defendant’s objection, without also introducing the application, which, by the policy, was made a part of the same. In support of this contention, defendant relies upon the case of Insurance Co. v. Storrs, 97 Pa. St. 354 . The ruling in that case supports the contention. But the doctrine is without application to the present case, if it be regarded as the rule, which is doubtful in this state. The complaint alleged a cause of action upon the policy, and that alone, as constituting the contract between the parties. The defendant did not demur to the complaint, or otherwise indicate that plaintiff had not stated a good cause of action. By its answer, it admitted, by not denying, the issuance of the policy. And, for a separate defense, is alleged that the application constituted a part of the contract, and specifically alleged a breach of the warranties therein contained. This plead

It therefore follows that no error was committed in this regard, and the judgment and orders appealed from should be affirmed, with costs.

All concur..