Cunningham v. Smith's Adm'r, 70 Pa. 450

Cunningham v. Smith's Adm'r

70 Pa. 450 | Pa. | 1872

The opinion of the court was delivered, February 8th 1872, by

Sharswood, J.

We are of opinion that the evidence offered by the plaintiff below and received by the court under exceptions, by the defendants, which forms the subject of the first three specifications of error, was irrelevant and inadmissible. More than *458that, it was calculated to distract and divert the attention of the jury from the only true point in issue, which was, whether the assignment of the policy on the life of Jerome Smith by the Connecticut Mutual Life Insurance Company, No. 88,435, to the defendants was absolute or as collateral security for advances by the defendants. That this was the true and only question which arose upon the evidence, is abundantly clear, and indeed is not disputed. The only ground upon which it has been attempted to sustain the admission of the evidence is that it proved the fact of the death of the insured. It is said that this fact was essential to the plaintiff’s recovery, and that although it was an admitted fact, the plaintiff was not bound to accept the admission, but could insist on proving it, and if the evidence of it gave her any collateral advantage with the jury she was entitled to the benefit of it. This may be true in general, but it is not true when the fact in question is conclusively admitted by the pleading, as was the case here. The action was by the plaintiff as the administratrix of Jerome Smith. There was no plea in abatement denying the death of Jerome Smith, and setting up the consequent invalidity of the letters of administration. The letters are not only in all cases primS, facie evidence of the death of the person on whose estate they are granted, but when there is no plea to them and consequently no issue made upon the grant, they are conclusive evidence of the fact of death: 1 Greenl. on Ev. § 550; Newman v. Jenkins, 10 Pick. 515; McKimm v. Riddle, 2 Dall. 100; Ayers v. Musselman, 2 P. A. Browne 115.

The next six specifications of error, which are to the answers of the court below to the points of the plaintiff and defendants, may all be resolved into one question, whether there was any sufficient evidence to submit to the jury upon which they could find that the assignment of the policy No. 88,435 was as a collateral security for present or future indebtedness by the assignor to the assignees. The defendants may have had such an interest in the life insured under the contract of September 1st 1868 as would have entitled them to insure his life in their own names. That, however, might have been a question. But Jerome Smith’s*interest in his own life was unquestionable, and if he was willing to insure himself with their money and then assign the policy to them, there is no principle of law which can prevent such a transaction. Indeed this is not controverted. Now, not only was the assignment in question on the face of it simple and absolute, but it was specially expressed so to be under the hand and seal of Jerome Smith himself. “I hereby assign, transfer and set over absolutely,” is its language. Mr. Tilden, the agent of the insurance company, by whom the assignment was drawn and witnessed, testified, “Jerome Smith said it was to be an absolute and unconditional assignment.” Two other witnesses testify to other de*459durations by him of the same import, at or about the same time. Mr. Morgan said : “There was then a further conversation about a policy to be taken out for the benefit of the firm, and as to whether there would be any difficulty in their taking out a policy which would secure them the amount of it in case of his death, whether they had any interest or not. Mr. Smith said they could take out a policy for whatever amount they liked if they would pay the premium.” And again : “ It was understood that this policy had nothing to do with their advances to Mr. Smith or to' the business in Mexico. I heard Mr. Cunningham say this to Mr. Smith.” Winthrop R. Cunningham in his deposition said: “ W. T. Cunningham said distinctly to Jerome Smith that he wanted it clearly understood that in any insurance that he effected for the firm, that if he died, we made the insurance, if he didn’t, we lost the premium. I remember these words; Jerome Smith fully assented to this.” And again : “ It was clearly understood and agreed upon between Mr. Smith and W. Cunningham & Sons that it was to be solely for the benefit of W. Cunningham & Sons free from any, claim of any kind.” The testimony of these witnesses was in support of what appeared on the face of the writing. On the other hand, what is set up to impeach the writing thus sustained ? First, the testimony of the plaintiff to a declaration by one of the defendants after the death of Smith, that they had taken out the policy to secure them against losses, and, second, the testimony of Henry K. Smith, a son of the plaintiff, that he had overheard the same conversation, and that Mr. Cunningham said “ that they had lost the policy that they expected would coverall the expenses;” and again: “that the one taken out to secure them was lost.” It may be that there was a time when this would have been considered a scintilla of evidence, sufficient to justify the submission of the case to the jury, but that doctrine is now exploded: Howard Express Company v. Wile, 14 P. F. Smith 201. It was evidently insufficient to authorize the jury to draw the inference that the assignment was other than absolute, and the question ought not therefore to have been submitted to them. It was a mere loose declaration, in the course of a casual conversation, unaccompanied with any admission of liability, at a time when the declarant supposed that the policy had been lost for want of the payment of the premium in proper time. It could not fairly be intended to mean, that the insurance was designed to secure the defendants for advances; but simply to secure them against losses and expenses generally in that business in which they had engaged with Jerome Smith, and on account of which they had insured or wished to insure his life. Under such a contract as they had made with Mr. Smith, they might well look forward to the contingency of losses and expenses other than those which would result from the failure of *460Smith to refund advances made to him. They contemplated consignments of merchandise to him for sale in Mexico or to the firm of' McCann & Co., of which he was to be a member, and such consignments instead of resulting in profits, might end in losses and expenses which the defendants would have to bear. Upon this, which is the most reasonable interpretation of the language, there was nothing to contradict the absolute character of the assignment.

As to the 10th assignment, the learned judge was certainly right that in point of law it was not material whether the premium on the policy was paid before or after the death of the insured. If so, it wras an error to submit the question to the jury- _

_ It is unnecessary to consider the 11th assignment. No doubt, upon the basis that the policy was assigned to the defendants as a mere collateral security for advances made to or debts owing by Jerome Smith, or the firm of which he was a member, the answer of the learned judge was entirely correct.

Judgment reversed, and venire facias de novo awarded.