Harry Norman Ball, Philadelphia, for appellant.
Owen B. Rhoades and Barnes, Dechert, Price, Myers & Clark, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 476]
This is an action in assumpsit by the beneficiary in seven life insurance policies issued by defendant. Plaintiff was the widow of the insured, Tom Harrison, to whom the policies were issued upon his written applications, copies of which were attached to the policies and made part thereof. The policies aggregated $43,000, and each policy contained a clause which provided: 'If the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age.' The insured's applications stated that he was born on December 4, 1886. Defendant, in its answer and new matter, alleged that the correct date of insured's birth was October 3, 1883, admitted liability in the sum of $39,094.06, being the amount of insurance which it was agreed the premiums paid would have purchased if October 3, 1883, was the correct date of birth, and denied liability for the difference between this amount and the total face value of the policies, which difference amounted to $3,905.94. Plaintiff filed an answer to new matter. Defendant paid the amount admitted to be due, and the case proceeded to trial, before a judge and jury, for the amount deducted, to wit, $3,905.94.
At the trial plaintiff offered in evidence the policies which included the applications attached thereto, and the admissions in the pleadings; plaintiff then rested.
[ 168 Pa. Super. Page 477]
Defendant introduced in evidence as one exhibit authenticated copies under the seal of the Department of Justice comprising insured's certificate of naturalization, petition for naturalization, and declaration of intention to become a citizen. In the petition and the declaration, which were signed and sworn to, insured stated that he was born on October 3, 1883, in Lithuania. Included in the records of the Immigration and Naturalization Service, and a part of the exhibit offered in evidence, was a manifest purporting to show insured's arrival in the United States on the S. S. Rhynland in the year 1903 at the age of twenty-one.
Plaintiff did not rely solely upon the presumption that the date of insured's birth (December 4, 1886), as stated in the application, was correct, cf. Hervitz v. New York Life Insurance Co., 160 Pa. Super. 496, 498, 499, 52 A.2d 368, but after the defense closed she went on to offer in evidence insured's application for a marriage license in which insured, under oath, gave the date of his birth as October 28, 1886. In her own behalf plaintiff also testified that when she married insured in 1913 he was twenty-seven years old in November of that year, thus making his birth some time in November of 1886. Plaintiff's son, Sigmund, also fixed the year of insured's birth as 1886. He was indefinite as to the exact date of birth. Both he and plaintiff named Thanksgiving Day as the time insured's birthday was usually celebrated.
Plaintiff's counsel requested the trial judge to instruct the jury to make a special finding: 'Was Tom Harrison born on October 3, 1883?' The trial judge modified plaintiff's request for the special finding and submitted to the jury the question: 'On what date was Tom Harrison born?' The jury found that the insured was born on the date stated in the naturalization papers, October 3, 1883. Accordingly, on this finding the
[ 168 Pa. Super. Page 478]
trial judge directed a verdict for the defendant, a point having been reserved as to the sum of $499, with interest, which amount defendant claimed it had a right to deduct from the accidental death benefit payable under a supplementary contract. Plaintiff filed motions for judgment n. o. v. and for a new trial. The court in banc dismissed plaintiff's motion for a new trial and, upon the point reserved, entered judgment for plaintiff in the sum of $571.52, being $499 ...