
    Nydes v. Royal Neighbors of America, Appellant.
    
      Beneficial associations — Membership application — Physical condition — Misrepresentations —Death benefit — Uncontradicted oral evidence — Case for jury■ — ■New trials — Practice, Supreme Qourt.
    
    1. Where a case depends on oral testimony, although unContradicted, such testimony must be submitted to the jury.
    
      2. Where a verdict is against the weight of the evidence a new trial should be awarded; but where no motion for a new trial is made, the Supreme Court will not reverse a judgment entered on'a verdict although inclined to the view that a different result would better accord with the demands of justice.
    3. In an action against a beneficial association on a death certificate, where the defense was that in the application for membership in the defendant association deceased had made material misrepresentations and concealments as to his physical condition and medical history, and in particular a statement to the effect that he had not consulted a physician in regard to personal ailments within a certain time, the case was for the jury and .a verdict for the plaintiff will be sustained, although there .was uncontradicted testimony of an attending physician that at the very time the insured submitted his application for membership he was and had been for some time a patient receiving treatment for tuberculosis, from which he died shortly thereafter.
    Argued Oct. 9, 1916.
    Appeal, No. 11, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1912, No. 2840, on verdict for plaintiff in case of Bessie Nydes v. Royal Neighbors of America.
    Before Brown, C. J., Mestrezat, Potter, Stewart and Frazer, JJ.
    Affirmed.
    Assumpsit on a death benefit certificate. Before Hay-maker, J.
    The opinion of the Supreme Court states the facts.
    Verdict for plaintiff for $2,272.33 and judgment thereon. Defendant appealed.
    
      Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. O', v.
    
      J. A. Langfitt, with him U. A. Screechfield, H. TV. McIntosh, and Thos. F. Garrahan, for appellant.
    The appellant’s misrepresentations as to his physical condition and medical history preclude a recovery on the certificate: United Brethren Mutual Aid Society v. O’Hara, 120 Pa. 256; Mengel v. Northwestern Mutual Life Insurance Co., 176 Pa. 280; Wall v. Royal Society of Good Fellows, 179 Pa. 355; March v. Metropolitan Life Insurance Co., 186 Pa. 629; Lutz v. Metropolitan Life Insurance Co., 186 Pa. 527; Rigby v. Metropolitan Life Ins. Co., 240 Pa. 332; Shannon v. Knights of the Maccabees, 54 Pa. Superior Ct. 634; Meyers v. Woodmen of the World, 193 Pa. 470; Timlin v. American Patriots, 249 Pa. 465; Commonwealth Mutual Fire Ins. Co. v. Huntzinger, 98 Pa. 41.
    
      Edmund K. Trent, of Prichard and Trent, with him R. P. Marshall and M. R. Marshall, for appellee.
    February 5, 1917:
   Opinion by

Mr. Justice Stewart,

The action was brought to recover on a benefit certificate issued by the Royal Neighbors, a fraternal beneficial association, to one Peter Nydes, in the sum of two thousand dollars, in which Bessie Nydes, wife of said Peter, was named as the beneficiary. It was defended against on the ground that in his application for membership in the association the insured had made material misrepresentations and concealments as to his physical health, the medical history of himself and his parentál kin, and his own personal habits as well. It is not necessary to recite the various provisions in the application for membership, in the laws of the association, and the admissions and waivers contained in the medical examination, on which defendant relied to escape liability. It is sufficient to say that once the material misrepresentations and concealments complained of were established at law recovery on the policy was thereby made impossible. At the conclusion of the evidence defendant moved for binding instructions. This motion was declined and exceptions to the ruling granted. In a charge to which no exception was taken the court submitted the case to the jury, and upon a verdict being returned for the plaintiff for the amount of the policy, a motion for judgment non obstante followed. Upon the refusal of this motion the present appeal was taken. These two rulings constitute the only assignments of error. Together they présent a single question, and to it our consideration of the case must be confined. Was the case one, which, upon its facts, was exclusively for the jury? If so, our consideration of the case ends with that determination. While, after a careful review of the entire record, we are much inclined to the view that a different result than that reached by the jury would better accord with the demands of justice, yet the case has now passed beyond the stage, where, even though the verdict fail to command 'concurrence, it can be corrected. For the correction of any such error, if error it be, the remedy always is in the hands of the court before which the case was tried. The duty of the court in all such cases is to correct the mischief, where it exists, by granting a new trial. In this case no new trial was asked for, and it is now too late to demand it. As we have said, the one and only matter we are called upon to consider is whether this case was exclusively for the jury. The answer to this must be, in view of the fact that the evidence in regard to what we must consider the material and determining facts in the case, was almost entirely parol, that it would have been in disregard of settled authority had the court taken the case from the consideration of the jury. The evidence most relied upon by the appellant is to be found in the testimony of an attending physician of the State tuberculosis dispensary of Pittsburgh — testimony in no wise impeached or contradicted — to the effect that at the very time the insured submitted his application for membership in the association, in which he stated he had not consulted any person, physician or physicians in regard to personal ailments, the insured, was, and had been for some length of time prior a patrent receiving treatment at his hands at the dispensary for pulmonary tuberculosis, the disease of which he died during the month of March following. This testimony was not assailed, nevertheless, being oral, it was necessarily for the jury to pass upon. So this court has decided in a number of cases when the exact question has been before it. In Reel v. Elder, 62 Pa. 308, 316, it is said by Sharswood, Justice: “However clear and indisputable may be the proof, when it depends upon oral testimony it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” The case of Grambs v. Lynch, 20 W. N. C. 376, 377, is equally in point. There it was held by the court below that, “where a witness swears positively to a fact and that fact is not contradicted, it is established, and there is nothing to submit to the jury.” On appeal this court held, speaking by Paxson, J.: “This is an erroneous statement of the law. It is settled law when a case depends on oral testimony that such testimony must be submitted to the jury.” It is needless to cite further authorities.

The refusal of the court to usurp the jury’s prerogative in this case — for it would have come to this had the court either given binding instructions or entered judgment non obstante — being the only matter here complained of, and the court’s action in that regard being free from error, nothing is left us but to affirm the judgment, and it is now so ordered.  