10 A.2d 412 | Pa. | 1939
This is an action in assumpsit instituted by Mary P. Purcell, the designated beneficiary, for the proceeds of an insurance policy upon the life of her husband. The case has been tried three times. At the first trial, the jury returned a verdict for plaintiff which, on defendant's motion, was set aside and a new trial granted by the learned court below, the reasons for which not appearing of record. This court, sustaining one of plaintiff's objections to a ruling on evidence by the learned trial judge, reversed the judgment entered on the verdict rendered for defendant at the second hearing and granted a new trial (Purcell v. Metropolitan Life Insurance Co.,
On July 2, 1931, the defendant issued its policy of life insurance, in which the insured reserved the right to change the beneficiary. The policy provided, inter alia, that the premiums were payable in semi-annual installments of $55.45 each on the second days of January and July of each year. The first premium was paid *590 by insured when the policy was issued, but when the second premium fell due on January 2, 1932, payment was not made. However, in the following March, the insured obtained a reinstatement of the policy under an arrangement whereby the premiums were to be paid quarterly, and at the same time he paid defendant company $28.25 as the past due quarterly payment of January 2, 1932. The next payment in the same amount became due on April 2, 1932. The insured died on June 1, 1932. The sole defense raised was that the quarterly premium due April 2, 1932, had not been paid; and that was the only issue.
The assignments of error raise three classes of questions: first, that the verdict was against the weight of the evidence; second, the right of counsel for defendant to open and conclude the argument to the jury; and third, certain rulings upon the admissibility of evidence. We have carefully considered all of these objections and find no merit in any of them.
The principal contention of defendant is that the learned trial judge erred in refusing to permit defendant's assistant manager to testify to declarations alleged to have been made by the insured to the witness, practically daily within a period of six days immediately prior to May 2, 1932, and for twenty-eight days thereafter, that the policy had lapsed, that insured was financially unable to reinstate it but that he hoped to do so in the future. In this we can find no error, for it is well settled that in a suit upon a life insurance policy by the designated beneficiary, there is no legal identity of title between the insured and the beneficiary, and the declarations of the deceased insured are generally not admissible against the beneficiary: Wigmore on Evidence, Vol. 2, 2d ed., sec. 1081, P. 599. See also: Hermany v. FidelityMut. Life Assn.,
Whether the insured retains the right to change the beneficiary or not, the legal rights when viewed after the death of the insured are between the insurer and the beneficiary. The beneficiary is suing, as a party to the contract, in her independent right, which does not depend on nor is it representative of any right of the insured:Hamill v. Supreme Council,
An examination of the offer here under consideration clearly shows that it was too broad and remote to admit the testimony embraced by it as part of the res gestae. It was attempted to show that the alleged declarations of the insured were uttered over a considerable period of time prior to and following the expiration of the grace period of thirty-one days from the time the premium of April 2, 1932, fell due. Here the issue was whether the contract of insurance had been forfeited because the insured had not paid the premium of April 2, 1932, by May 2, 1932, the date of the expiration of the grace period. Statements which may have been made by the insured six days prior to or some twenty days after the event of forfeiture were so remote in time as to be clearly inadmissible. They could not possibly have been admitted as contemporaneous, spontaneous exclamations growing out of and explanatory of the event, nor as declarations directly connected with and forming part of the res gestae. Since part of the testimony included in the offer was patently inadmissible, and the evidence was offered as a whole, it was not error for the learned trial judge to reject the whole: Wharton v. Douglass,
Judgment affirmed, at appellant's cost.
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