80 Pa. Super. 594 | Pa. Super. Ct. | 1923
Opinion by
The action was in assumpsit upon a policy of life insurance. The disputed issue of fact was whether the semiannual premium falling due on January 19, 1918, had been paid within the grace period of thirty-one days thereafter or not. If not, the policy lapsed and was not in force when the insured, plaintiff’s son, died, on March 16,’ 1918. The plaintiff asserted that she had paid it to
The issue was one of fact and binding instructions could not have been given for the defendant. Scudato was admittedly the agent of the defendant with authority to accept payment of the premium and countersign and deliver the company’s receipt therefor. If the plaintiff paid him the premium on February 11, 1918, and he gave her a receipt similar in form and color to those which she had usually received, she was entitled to recover: Dominco v. Prudential Ins. Co., 49 Pa. Superior Ct. 156; and the fact that she was not able to produce the receipt thus given her did not affect her legal rights but only her credibility If she could explain her lack of it to the satisfaction of the jury, she was entitled to do so. The court could not rule upon it as a matter of law. The provisional receipt dated February 25, 1918, was
We are not convinced that the matters complained of in the second and third assignments injuriously affected the defendant or influenced the jury in their verdict. The learned trial judge might have been more gracious in his reception of the suggestion as to his charge made by defendant’s counsel in response to his own invitation, but we feel satisfied that the verdict would have been the same, notwithstanding the apparent rebuke which probably was not intended as such. The matters referred to by counsel had already been adverted to, at some length, in the charge of the court, with the exception of the provisional receipt, which, as we have before pointed out, was disputed.
„ None of the other assignments merits special consideration. They are all overruled and the judgment is affirmed.