Fisher v. Fidelity Mutual Life Ass'n

Citations

• 188 Pa. 1
• 41 A. 467
• 1898 Pa. LEXIS 565

Syllabus

<p>Practice, common pleas — Pleading—Insurance.</p> <p>In an action upon a policy of life insurance where the statement of olaim averred that “ a true and complete copy of the policy is attached to and made part hereof,” but the copy of the policy filed refers to conditions none of which is attached to the statement, the defendant should demur to the statement; and if it fails to do so, and pleads non assumpsit, it cannot object, when the whole policy is offered at the trial, that the policy does not correspond with the instrument declared on. In such a ease the admission of the policy is equivalent to an amendment of the statement, and if the defendant is not prepared to meet the issue in that form, it should plead surprise, and ask a continuance. After a trial upon the merits the Supreme Court will not consider the suggestion that the allegata and probata did not agree.</p> <p>Insurance — Life insurance — Attachment of application to policy — Act of May 11, 1881.</p> <p>The omission to attach to a policy of insurance a portion of the application is a failure to comply with the requirement of the Act of May 11, 1881, P. L. 20, and if it appears that there is a supplementary application which was not attached to or indorsed on the policy, the original or principal application is not admissible in evidence.</p> <p>Evidence — Letters—Negotiation for settlement.</p> <p>Letters and written communications made in an offer or negotiation with a view of a settlement are not admissible in evidence.</p> <p>Insurance — Life insurance — Suicide—Burden of proof.</p> <p>Where a policy of life insurance provides that the policy shall be void if the insured dies by his own hand, and also provides that payment shall be made “ after receipt of satisfactory proof of death of said member, and the justness of the claim thereunder,” the plaintiff is merely required to make out a case by affirmative proof of death, and title in the policy. The burden of proof is not upon the beneficiary