
    UNITED BRETHREN MUTUAL AID SOCIETY vs. RICE.
    Where a policy of life insurance contains no warranty that the answers are true, an honest mistake as to the age of the party insured will not avoid the policy.
    Error to Common Pleas of Perry County, No. 396 January Term, 1883.
    This was an action of debt in the Court below to recover the amount of a policy of insurance. The facts of the case appear in the charge of the Court, which was as follows, per
    Barnett, J.
    Benjamin F. Rice and Susan B. Rice, his wife, for her use, the plaintiffs in this case, sue The United Brethren Mutual Aid •Society of Pennsylvania, the defendant, to recover the amount •of insurance effected upon the life of Mrs. Sarah Ickes for the benefit of said Mrs. Rice. [The application of Mrs. Ickes and the certificate of the said Aid Society (a corporation chartered by an Act of Assembly of this Commonwealth) issued thereon, form principally the contract between the parties. These papers, since the death of Mrs. Ickes, have both been in the possession of said corporation, and wrere produced in pursuance of notice, and w7ere offered in evidence by the plaintiffs.] The ■defendant objected to the admission in evidence of the certificate, or policy, as u7e will hereafter call it, on the ground that it wras delivered to the company voluntarily by the plaintiffs and without any condition of its return; and on the further ground that the consideration originally paid for the policy wras returned to and accepted by the plaintiffs and has not been re-offered to the company. The Court admitted the policy in ■ evidence, and here is raised the first question of fact, that must be determined by the jury. The plaintiffs contend, and have produced certain witnesses, whose testimony you will remember, tending to show that the policy was delivered to the agent of the company with the express understanding-that the plaintiffs should have the same legal rights against-the company, if they delivered up the policy, that they would have if they retained the policy, In other wrords, that they should remain in precisely the same condition as to all legal remedies against the company if they delivered up the policy that they were now in with the policy in their possession. On the other hand the defendant contends, and have produced the special agent of the company, who testifies that no such arrangement was made as claimed by the plaintiffs, but that, on the contrary he declared that there had been a wrong age of the applicant given to the company, and that it would not pay any part of the policy. That if the plaintiffs would surrender the policy on the day he demanded it the company would refund the premiums paid for it; and that if it was not. then surrendered the company would cancel it as soon as he returned home and would then pay back no portion of the premium; and that the policy was then surrendered by the plaintiffs, and the premium was sent by cashier’s check in a letter addressed to Mrs. Rice, and received by her, as appears-by the check given in evidence, [Now, all the evidence in the case touching this question is for your careful consideration, and if you should find as the result of that consideration of the evidence, that the policy was voluntarily surrendered: without condition other than that the moneys paid to the-company should be returned to the plaintiffs, and that the moneys were returned and so accepted by the plaintiffs, then-you need go no further in your inquiries; because the plaintiffs-would in that case not be entitled to recover, and your verdict, should be for the defendant. On the other hand, if you should, find from all the evidence in the case that the policy was delivered to the defendant on the condition that their right of' recovery should remain precisely the same as if they retained the policy, then other questions will present themselves for investigation bef jre you can reach a final conclusion.] There- • have been no death proofs furnished the company as required by the contract of insurance; and if this were the result of' negligence on the part of the defendants, then having failed. in one of the necessary preliminaries to the right of recovery,. they would not be entitled to your verdict. But if, on the ■ other hand, you should find from the evidence that the com- - pany, through its authorized agent, Mr. Gross, declared that it. would not pay the insurance at the time the policy was de». manded and delivered, then it would not be necessary for the' plaintiffs to furnish any of the preliminary proof of death,, and the want of such death proofs would not defeat their right. to recover, if otherwise entitled to be paid the insurance. If you should determine the foregoing question in favor of the-plaintiffs, then the next question for your consideration arises out of the following circumstances: In the contract between: the parties contained in the application and the policy it is-, agreed that the “application with the declarations and statements therein made shall form the basis of the contract, * * * and that if any of the statements and answers therein made are untrue and false * * or any statements or untrue answers made tending to deceive the society * * * this contract shall become null and void, and all moneys -. which shall have been paid shall be forfeited, and the policy issued to the applicant hereupon shall not be binding upon, the society.” In the application appear the following question and answer : What is your age and occupation ? Answer, 62: years, 11 months and 8 days. This question and answer formed a material part of the contract, as well as on account. of the subject matter inquired about, as because they were-made so by the very terms of the contract. And if the ap-plication and policy were the only evidence of the contract, and contained in themselves the whole of the contract as made-between the parties, then the only question for your inquiry,, in this branch of the case, would be whether that answer were' true or whether it was untrue. And if you find, as the evidence tends strongly to prove, the applicant, Mrs. Iclces, was of' a greater age, at the time she signed that application, than 6A„. years, then by the terms of the agreement itself, the contract between the parties become null and void, the policy was not binding upon the society, and there can be no recovery by the plaintiffs in this action. [But it appears from the evidence, if believed, that when Mr. Barnes, the soliciting agent of the ■company, inquired of Mr. Rice as to the age of the applicant, he was informed that he could not tell her exact age, that these was no record, and that Mrs. Ickes could not tell her age nearer than that it was between 63 and 64 years. The agent ■declined to take the insurance until he had received further 'instruction from the company; and he testifies that he wrote to the secretary of the company stating these facts in reference to the uncertain age of the applicant, and in pursuance ■of a letter received from him, he took the insurance on old Mrs. Ickes, for which a policy was issued by the company. He further testifies that when he took the application Mrs. Ickes •told him she was between 63 and 64 years old; that he asked her if she had no record of her age and she said, no. That he then asked her if she was sure she was between 63 and 64 years, and she said “to the best of my knowledge I am not older.” He says that is about all that was said and he closed out the application.] [Now if the jury believe that the answer to the question as to age was made by old Mrs. Ickes, as testified to by Mr. Barnes, and she said at the ver/ time the application was taken that she had no record of her age, but that she was not older than between 64 and 65 years to the best of her knowledge, then under all the facts and circumstances of this case the contract between the parties must be taken as if the answer set down in the application read, “lam between 63 and 64 years of age, to the best of my knowledge.” And then the important question for the jury is, was that an honest answer made by the applicant ?] She may be pardoned for being mistaken in her knowledge and belief, but there can be no possible excuse for anything but the strictest honesty in so stating her knowledge and entertaining her belief. The contract between the parties, in this particular, requires the utmost good faith on the part of the applicant. If she doubted ór hesitated in her mind as to whether or not her age ex■ceeded 64 years she ought so to have stated to agent. If she kept back anything that was in her knowledge, as to the probability of her age exceeding 64 years; if she concealed anything from the agent that tended to deceive him and the com-' panyhe represented, then she lacked that high degree of honesty and strictest good faith required by the law in a contract ■of this kind, and the policy so obtained would not be binding upon the company. For a much stronger reason, if the old lady knew that her age exceeded 64 years; if she did anything with the intention of deceiving the company in regard to her age and leading it to believe that she was younger than she actually knew her age to be, then she was guilty of practicing a fraud upon the company, and there could be no recovery of the amount insured and your verdict should be for the defendant. [So that a very important inquiry for you under all the evidence in this case has respect to the strict honesty and utmost good faith with which the answer was made to the ■question in the application as to the age of the applicant. If you should come to the conclusion, after a careful and full examination of all the evidence in this case that the contract of insurance was honestly, faithfully -and fairly made between the parties to the contract, without any concealment or attempt to deceive on the part of the applicant, with a full and honest belief on the part of the applicant that her age was ■correctly and accurately given to the agent of the company, .so far as she had knowledge and belief as to such correctness and accuracy, then the plaintiffs may recover and your verdict should be in their favor for the amount of the policy, with its interest, according to the terms of the contract.] But on the other hand, if you should find from all the evidence in the case, touching this inquiry, that there was lack of honesty, intentional concealment, or the slightest attempt to deceive on the part of the applicant, then your verdict should be for the defendant.
    To recapitulate briefly; the questions arising in this case for your determination are:
    [1. Was the policy surrendered voluntarily by the plaintiffs ns claimed by the defendant, and the contract rescinded; oí ' was the policy delivered to the defendant, as claimed by the-plaintiffs, with the understanding and on the condition that-the legal rights of the plaintiffs should in nowise be affected by such delivery ?]
    2. Did the defendant, through its special agent, declare to> the plaintiffs that it would not pay the amount of the policy because of the untrue statement of the applicant’s age ? And' was the failure to make the preliminary proof of death by reason of such refusal on the part of the company to pay the insurance in any event ?
    [3. "Was the statement of the applicant’s age made honestly in the strictest good faith by Mrs. Ickes ? Or was there a want of honesty in this particular, or an intention to conceal and: deceive ?]
    If you should find either of these three questions as contended for by the defendant, than the plaintiffs cannot recover and your verdict should be generally for the defendant.
    But on the other hand, if you should find all these questions of fact to be as contended for by the plaintiffs, then your verdict should be in their favor for the amount of the insurance, with its legal interest.
    We think it hardly necessary to say to you — but it is not. improper to do so — that the legal rights of the parties in this-contract should be fairly, carefully and impartially determined by you, as in all other cases, without favor for or prejudice against either party. There should be no prejudice aga’nst a corporation as such. Its rights in a court of justice are precisely the same as that of any other party, neither more nor less. It is entitled to no favor and should suffer from no-prejudice. You will pardon me for saying this, and dispose, of this case strictly according to the law and the evidence, and find just such verdict as shall commend itself to your consciences and your judgment.
    On November. 2, 1882, the jury rendered a verdict in favor of the plaintiffs for $1,126.90.
    The society then took a writ of error complaining of the portions of the charge in brackets.
    
      
      J. H. Graham and C. J. T. McIntire, Esqs., for plaintiffs in. error.
    
      Messrs. B. F. Junkin ond W. A. & W. H. Sponsler, Esqs., contra,
    
    argued that in any contract where there is a doubt as to the quality or title, and the buyer either by express agreement or necessary implication assumes as part of his bargain the risk of title or quality, he cannot be heard afterwards to defend against paying the price; Hart vs. Porter, 5 S. & R., 203, Friedley vs. Scheetz, 9 S. & R., 163; Lighty vs. Short, 3 P. & W., 447; Moore vs. Shelley, 2 Watts, 256; Stroop vs. Ransom, 10 Watts, 297; Ross’ Appeal, 9 Pa., 496; Cadwalader vs. Tryon, 37 Pa., 318; Oil Creek R. R. vs. Penna. T. Co., 83 Pa., 160.
   The Supreme Court affirmed the judgment of the Common. Pleas on May 21st, 1883, in the following opinion :

Per Curiam.

The policy does not contain a warranty as to the correctness^ of the answer. It would therefore have been error had the-Court affirmed the points submitted by plaintiff in error. Mrs. Ickes distinctly told the agent that she had no record of her age, hut stated, to the best of her knowledge, what her age-was. The'se facts were communicated to the home office before the risk was taken. With that knowledge the Company concluded to trust her uncertain statement, and issued the policy. The jury have found that she made the statement with entire-good faith, and without any intention to deceive the company. The latter took the premium, running the risk of the age as-represented not being accurate. In the absence of fraud, deceit, or warranty, we see no error in the record.

Judgment affirmed.  