NO. 73.
Per Curiam:This action is on a policy of insurance for $1,000, issued by defendant company on the life of Bernard O’Hara for the benefit of his son, John F. O’Hara, the plaintiff. The policy or certificate of membership contains a provision that if any answer or representation, made by the insured in his application, is in any respect untrue, the policy shall be null and void. It was alleged by the company that the insured had violated this provision, in that he had falsely represented that his habits of life were temperate; that he had never, been afflicted with asthma or dropsy, or any other disease; that he had not had any medical attendance during the year prior to his application, and that he had no family physician. On the trial, evidence tending to sustain these allegations was introduced by the defendant company. To meet this, rebutting evidence was introduced by the plaintiff, and thus questions of fact were presented that were clearly for the jury. The ease was submitted to them by the learned president of the Common Pleas in a clear and comprehensive charge, in which all the questions iu volved were fully and fairly presented.
The first and third specifications are to portions of the charge therein recited. There appears to be no error in either of them. As a whole, and in all its parts, the charge was quite as favorable to the defendant company as the circumstances of the case warranted.
The subjects of complaint in the fourth and fifth specifica*423tions are the refusal of the court to affirm defendant’s first and tenth points, in each of which the learned judge was virtually requested to withdraw the case from the jury, and direct a verdict for defendant. Both points were rightly refused. To have done otherwise would have been manifest error.
The sixth specification is so clearly without merit that it requires no further notice.
In defendant’s ninth point, covered by the second and only remaining specification of error, the court was requested to charge as follows, viz.:
“ The evidence being plain and direct that Bernard O’Hara had medical attendance within a year prior to his making application for membership in the company defendant, and there being no evidence presented that amounts to a contradiction of this, the plaintiff cannot recover.”
That point was predicated of the evidence of Dr. Whitney, who testified, in substance, that he had attended Bernard O’Hara, as well as other members of his family, professionally, within a year prior to April 23, 1881, the date of his application for the insurance. In view of other evidence in the cause tending to create a doubt as to the correctness of Dr. Whitney’s testimony as to the time he attended the insured, etc., the learned judge rightly refused to affirm the point, and said: “We cannot say that there is no evidence in contradiction, and the credibility of the witnesses is for you.” Under the circumstances disclosed by the evidence, the court had no right to assume that the witness was not mistaken, or to say that his testimony should be accepted and acted on as verity.
The case was ably and fairly tried, and the jury, by their verdict, have settled in plaintiff’s favor all the questions of fact upon which his right to recover depended.
Judgment affirmed.
no. 74.
Per Curiam :
In the court below and here, this case was tried with No. 73 . of this term, in which an opinion, has just been filed. The right of the plaintiff to recover depended on the same facts and principles that were involved in that case. For reasons *424given, in the opinion referred to, there is nothing in either of the specifications of error, which are the same in both cases, that would warrant a reversal of the judgment.
Judgment affirmed.