Arnold v. Metropolitan Life Insurance , 22 Pa. Super. 575 ( 1903 )

Opinion by

Beaver, J.,

When this case was here before (20 Pa. Superior Ct. 61), we said, referring to the testimony of Dr. Reber and others : “ The credibility of the witnesses was, under the circumstances, for the jury and we, therefore, send the case back for a retrial.” It would be a reversal of ourselves to reverse the court below now for doing that which we then said should be done. We would have no hesitation in doing this, if we were previously in.the wrong. Were we wrong ?

It must be remembered that the testimony of Dr. Reber was itself a contradiction of the representations of the deceased in his application for the policy of insurance upon which this action is founded. It cannot be said, therefore, that the testimony of Dr. Reber was uncontradicted in the usual sense in which we employ that term. It is true that no living witness contradicted him and;* in the very nature of the case,, none could contradict him, unless indeed a third party might have been present at the examination concerning which the doctor testifies as to the answers of the deceased. We have, on the one hand, the representations of the deceased as contained in the application and, on the other, the testimony of the doctor, contradicting and negativing those representations. Which was correct? 'Surely this was a question for the jury. The court could not have properly said to the jury that Dr. Reber’s testimony, being uncontradicted, must, therefore, necessarily be believed. They had a right to determine from his manner and from all the surroundings whether or not his contradiction of the facts set forth in the application of the deceased was such as to warrant them in determining that the deceased was guilty of making false representations to the defendant. The very fact, stated by the appellant in the argument, that “ the testimony of the physician, Dr. Reber, was even clearer on the second trial than on the first ” may have led the jury, if their attention was called to it, to doubt the credibility of his testimony on the second trial. It would, at the least, be some evidence of the unreliability of his memory. The case of Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610, cited by the appellant, is altogether exceptional. Mr. Justice Mitchell, who delivered the opinion in that case, says : “ It is further said that the testimony as to the posting of the notice and the deceased’s knowledge of it was by witnesses for the defense and their credibility was for the jury. Such certainly is the general rule. The jury are not bound to believe every word that a witness or witnesses are willing to swear to simply because no other witness contradicts it. If its inherent improbability or irreconcilability with facts, shown or admitted, be such that it does not command their assent, the jury may disregard it, but this rule is founded on common sense and knowledge of human nature and must be limited by the same standards.” The case under consideration is not, however, of this exceptional class, as we think what we have already said clearly shows.

There is nothing in the case requiring discussion, as the only point raised by the several assignments of error is the submission of the credibility of the witnesses to the jury.

Judgment affirmed.