87 Pa. 409 | Pa. | 1878
delivered the opinion of the court,
Prima facie the insurance company, defendant, paid to Becker for John Spieler, the money due on the policy covering the life of John Roth, on faith of the assignment of the 24th of February 1871. Without something to show that the case was, in fact, not as it appeared by this paper; that a fraud had been perpetrated upon Roth’s estate by the insertion of Spieler’s name into the assignment after Roth’s death, and that of this the defendant had notice before payment of the money, the plaintiff has no standing to maintain this suit.
In order to the establishment of a condition of affairs, such as above indicated, the court admitted proof of the declarations of Adam Becker, the sub-agent of the defendant, through whom the risk was taken, that the assignment had been executed in blank, and that he had subsequently to Roth’s death inserted Spieler’s name as assignee of the policy.
To this ruling of the court the defendant excepted, and gave as reasons therefor the following: First, these declarations were not made by Becker at a time when he was acting as agent of the company in the execution of the policy, but long after that execution, when testifying as a witness in a case of the Commonwealth v. himself and Spieler. Second, the insertion of Spieler’s name after Roth’s death was an act committed for his own purposes, not in the line of his agency, and, as a consequence, his declarations concerning the same, could not affect the company.
The first of these reasons is supported by the cases of Fawcett v. Bigley, 9 P. F. Smith 411, and Bigley v. Williams, 30 Id. 107, in which it is held that the narrative of an agent of a past transaction cannot be received in proof in a suit against the principal; the second is so obviously sound that authority to support it is unnecessary. As between the parties to this suit, the declarations of Becker are the declarations of a stranger to the issue, and can affect the case no more than those of any other third party.
It is urged that these declarations were legitimately part of the case, inasmuch as they went to establish the fraud of Becker; it is true, they do tend to prove such fraud, and as against himself, they would be relevant; but this proof is to affect, not him, but the company ; it is the prime factor in the plaintiff’s case, without it she cannot recover, and as it is foreign to the company’s transactions, it must be treated as the proof of any other substantive fact, which requires for its establishment direct evidence, not the declarations of a third party.
The remaining exceptions are not sustained.
The judgment is reversed and a venire facias de novo is ordered.
