33 Pa. Super. 364 | Pa. Super. Ct. | 1907
Opinion by
Two policies of insurance upon the life of Mary Mennighan, which had undeniably lapsed for nonpayment of premiums,-were sought to be revived, under circumstances and upon conditions contained in the said policies, fully set forth in the opinion of the trial judge in the court below in overruling the motion to take off the judgment of nonsuit. The facts are so clearly stated in that opinion that it is unnecessary to restate them here. The decedent died within fifteen days after the payment of the money required to secure the revival.
It cannot, of course, be said that the defendant was misled by the representations of the decedent that she was in good health, because her application was accompanied by a statement of the agent that she was sick at the time. He recommended the revival of the policies, not on the ground that the risk was good, but that such action by the company would be a good advertisement.
We quite agree with the court below, therefore, that “ thé mere lapse of two weeks ” in passing upon the question of revival “ would not in itself warrant a presumption of acceptance.” The determination as to the revival involved a broad question of policy which the .executive officers of the company might well have hesitated about adopting, even if they had any authority to revive on any other basis than that of good health, of which there is no evidence whatever, and, inasmuch as the question was undetermined at the death of the decedent, it can scarcely be expected that the company either could or would assent to the revival thereafter, even as an advertisement.
This case is, in no sense, similar to White v. Metropolitan Life Ins. Co., 22 Pa. Superior Ct. 501. In that case, without any representation or proof as to the condition of health of the defendant, money sufficient to pay the premiums in arrear, and also future premiums to a date beyond the death of the insured, having been paid, and the company having retained the same, without requesting any proof as to the soundness of the health of the applicant, we held it was not error for the court to submit to the jury whether the company had reasonable time within which to determine what its action would be, and whether the retention of the money did not indicate a determination to revive the policy.
The money was returned from the home office of the company to the agent, and offered to be returned to the present plaintiff before letters of administration upon the decedent’s estate had been issued to her. Whether her refusal to accept was based upon the fact that she had no legal right to do so need not now be considered. The defendant did all that was in its power in relation to the return, and cannot be held responsible for the acts or delays of the plaintiff.
The nonsuit having, in our opinion, been properly entered, the court cannot be convicted of error in refusing to remove it.
Judgment affirmed.
