197 A. 632 | Pa. Super. Ct. | 1937
Argued October 1, 1937. This is an action of assumpsit to recover an alleged balance due on a policy of life insurance issued by defendant to plaintiff's deceased husband, in which plaintiff was named as beneficiary. The policy provided for the payment of $480 upon the death of the insured, and the additional sum of $240 if death occurred solely through external, violent, and accidental means. On August 29, 1932, insured was killed under circumstances which brought him within the accidental provisions of the policy. *368
After proofs of death of insured had been furnished to defendant, the latter sent to its Philadelphia agent, Elmer O. Jones, a check payable to the order of plaintiff, and a receipt to be signed by her. She was then notified to call at the branch office.
Plaintiff testified that she called at the branch office of defendant and met Jones, who asked her whether she wanted a check or cash in settlement of the policy claim. Plaintiff advised him that she desired cash, and endorsed with pencil a check which he presented to her. She said she did not know that she was endorsing a check payable to herself for $724.40, and did not look at the face of it. The check, offered in evidence by defendant, was presented to the bank by Jones, and was unacceptable because of the pencil endorsement. The bank required the endorsement to be in ink. Jones again presented the check to plaintiff who erased the pencil endorsement and signed her name in ink. Jones returned to the bank with the check, received the proceeds, and, upon arriving at his office, according to both his testimony and that of plaintiff, counted out the money to her. The only dispute is relative to the amount which plaintiff received. She testified that Jones counted out to her $484.40; Jones testified that the amount was $724.40. After plaintiff received the money she admittedly signed the following receipt, offered in evidence by defendant:
"Oct 19, 1932
"$4.40 Ret Adv Prem.
"Jennie Haze (Seal)
"In the presence of
"E.O. Jones Identified by .............."
Plaintiff also testified that at the time of signing she did not read the receipt, but that she could have read it. She read it to the jury. Its execution was not induced by any false representations. See Ralston et ux. v. Philadelphia Rapid TransitCo. (No. 1),
The jury found for plaintiff. Defendant's motions for new trial and judgment n.o.v. were dismissed by the court below, and judgment entered on the verdict. Defendant has appealed.
The trial judge submitted the case to the jury on the ground that the issue was a matter of credibility between appellee and appellant's agent.
In our opinion appellant was entitled to affirmance of its point for binding instructions or to judgment in its favor n.o.v. We do not consider appellee's endorsement of the check, under the circumstances, material to a determination of the issue. The evidence adduced on her behalf showed that, after a sum of money had been counted out to her, she executed the receipt under seal for $724.40, the full amount of her claim; a denial upon her part that she had received that amount; and a statement that she received only $484.40. The receipt *370
was an acknowledgment under the hand and seal of appellee that she had received from appellant the sum of $724.40 in full settlement of all claims against appellant under the policy of insurance issued on the life of the insured and terminated by his death. It was prima facie evidence of the payment of the amount of the claim (Hamsher v. Kline,
Appellee admits that she executed the receipt, and the circumstances of the execution show conclusively that it was done without any fraudulent representation or duress. It was her free and voluntary act. Her contention is only that she received less than the amount which the release stipulated, which was the amount she was to have received from appellant.
Although a receipt is open to contradiction, explanation, or correction (Gregory v. Huslander,
In Paige v. Paige,
Appellee cites Stephenson v. Colonial Life Insurance Company ofAmerica,
In the instant case appellee received the money before she signed the receipt. She signed the receipt deliberately and in the absence of any misrepresentation. After an unexplained silence for two years she seeks to recover from appellant an alleged deficiency on her own controverted statement as to the amount received by her.
Judgment is reversed, and here entered for defendant. *373