49 Pa. Super. 156 | Pa. Super. Ct. | 1912
Opinion by
On July 16, 1906, the defendant company issued to one Fannie Dominco its policy numbered 22,087,370 insuring her life in the sum of $100. In accordance with the requirements of the policy and the custom of the company it then delivered to her a book in which the agent of the company collecting the weekly premiums was to enter the same with his name or initials showing the receipt of the premium by the company. The book was prepared with a caption of three columns, the first of which contained the number of the policy, the second the name of the insured, and the third the amount of the weekly premium. On November 19,1906, the company issued a second policy to the same insured numbered 22,517,444 insuring her life in the like amount of $100, each of the policies carrying a weekly premium of ten cents.
The woman whose life was insured by these two policies died in February, 1908. Upon the receipt of proofs of death the company promptly paid the amount of the policy first named but declined to recognize its liability under the second one mentioned. The surviving husband, having first taken out letters of administration on the estate of his wife, brought this action to enforce the payment of the insurance covered by the second policy. The company filed an affidavit of defense, which, along with some general allegations that the insured had not complied with the obligations imposed upon her by the policy, specifically averred as follows: “That no premiums were paid on said policy since March 18, 1907, and according to provision 3 as contained in the third page of the said policy, which was made a part of the contract, to wit: ‘3. — Policy when void. — This policy shall be void if the said weekly premium shall not be paid according to the terms hereof/ as is more fully set forth in a copy of the said policy set out in and attached to the plaintiff’s state
The able counsel for the appellant rests his case mainly on two grounds, (1) that the learned trial judge under the evidence should have given a binding direction to the jury to render a verdict for the defendant, or, failing in this, should have subsequently granted a motion for judgment non obstante veredicto; (2) that it was error under the provisions of the policy for the trial judge to have received evidence of the plaintiff and his witnesses tending to show, that at a period of time before the death of the insured, the receipt book, at the request of the company, had been surrendered for the purpose of correcting some mistake and that during that period he had paid the proper premiums to the collecting agent, taking loose receipts therefor, which, upon the return of the book, were delivered to the agent.
1. It must be apparent, we think, that if the plaintiff, by himself and his witnesses, produced oral testimony tending to show that the policy on which the suit was brought had not been permitted to lapse for nonpayment of the premium, either at the date set up in the affidavit of defense or at any other time prior to the death of the insured, the learned trial judge could not have done otherwise than submit the question of fact to the jury under proper instructions. It is not for us to discuss or consider the credibility of the witnesses nor to determine on which side of the issue raised the preponderance of the testimony existed. To do this would be to invade what every one concedes is the exclusive province of the jury.
An examination of the receipt book which was offered in evidence first of all shows, in so far as the book speaks for itself, that all of the moneys therein receipted were on account of the policies on the life of Fannie Dominco and on no other account. Its caption contained her name twice and no other name; the numbers of her two policies and
2. The policies issued by the defendant company contained a provision in respect to the payment of premiums as follows: “Payments to be recognized by the company must be entered at the time of payment in the premium receipt book belonging with this policy.” By reason of this provision it is contended that even if the plaintiff were abundantly able to satisfy the jury by parol testimony that the premiums had in fact been paid, such evidence could not avail if such payments were not noted in the premium receipt book. In other words, the failure of the book to exhibit the evidence of the payments alleged is conclusive upon the plaintiff and estops him from showing otherwise the fact of payment. We cannot accept this conclusion as a sound one. It was the payment of the premiums in fact that kept the policy in force. The evidence of such payment in the receipt book, as provided for in the policy, would be of the utmost value to the plaintiff and of course a reasonable measure of protection to the company. But if the latter, through its agents, actually received the premiums and by fraud, accident, or mistake, they were not entered in the book, it could hardly
But in this case we think the plaintiff, if his testimony be credible, had discharged that burden. There is evidence to show that some confusion existed between him and the collecting agents as to which one of the three policies originally issued it was intended to abandon. He testifies distinctly, and in this he is corroborated, that there was a time in January, 1908, when the book was not in his possession, having been turned over by him to the agent of the company. True, the latter denies having either requested its surrender or having at any time received it. This, however, raised but an issue of fact for the jury. Certainly, if the plaintiff could have produced loose re
We are therefore of the opinion that the learned trial court could not have withdrawn from the consideration of the jury the evidence of the payment of premiums on the policy in suit which were evidenced by loose receipts because the receipt book was not at that time in the possession of the insured or her husband but in the possession of the company. This being so, the several points of the defendant on this branch of the case were properly refused and the remaining assignments of error are dismissed.
Judgment affirmed.