Opinion by
Thе question involved is whether or not, under the facts of this case, a life insurance company established that it had paid the proceeds of life insurance policies to the named beneficiary. The court below ruled that it did not and directed the jury to render a verdict in favor of the beneficiary. The insurance company appeals from the refusal of the court to enter judgment for it non obstante veredicto.
Plaintiff, Cora V. Savidge, is the widow of the insured, Joseph W. Savidge. She was named аs the beneficiary in four life insurance policies of the defendant, Metropolitan Life Insurance Company, insuring the life of plaintiff’s deceased husband. The sum payable upon the said policies aggregated $8,704.44.
In a suit in assumpsit instituted by plaintiff against defendant on April 6,1953, she averred that the insured died May 6, 1951; that defendant did not pay plaintiff the amount of such policies which it had covenanted to pay upon the death of insured. Defendant answered that it had paid plаintiff and exhibited checks and endorsements thereon indicating payment. The issue being thus framed, the case came on for trial before a jury. Formal proof of the existence of the insurance contract and defendant’s liability thereunder were fixed by the pleadings, concerning which there is no dispute. The single question is whether defendant proved facts which established legal payment by defendant.
Plaintiff testified that the insured died May 6, 1951. On the following day she delivered the pоlicies and executed proofs of death to one Arthur Benson, a trusted friend of the family, who had represented himself to be a lawyer. She further testified that “[She]
She further testified: “By The Court: Q. What authority did you give Mr. Benson? A. Well, he being my lawyer, naturally, I turned the things over to him. Q. Did you authorize him to collect the insurance for you? A. I didn’t authorize him, no, but when I asked him about it he said, ‘I have already gotten it and put it in saving funds.’ So, of course, I didn’t distrust him. So, I thought he did.” Plaintiff admitted that she did nothing and made no claim against defendаnt for a period of seventeen or eighteen months after she had turned the policies and proofs of death over to Benson, and that he had told her that he had collected the funds and deposited them to the credit of the estate. The learned trial judge accurately stated in his charge to the jury: “. . . she ascertained the fact that checks of the defendant insurance company had been deposited in an account in her name in the Bryn Mawr Trust Company. Of course, the plain inference from this testimony, members of the jury, is that Arthur Benson procured these checks, opened an account in the name of Mrs. Savidge, and probably in some manner not disclosed by the evidence, withdrew the amount in the account.” The judge thereupon directed the jury to return a verdict for plaintiff for the full amount of the claim with interest. His assigned reason was: “. . . the obligation of the defendant insurance company in this
Since plaintiff employed an agent to deliver the policies with proofs of death to defendant, and since she ratified the act of collecting the proceeds, she cаnnot impose liability on the insurer to pay her a second time. Payment to an authorized agent is payment to the principal. Improper payment to an agent may be later affirmed by the principal with the same effect аs if the act had been originally authorized by him: Bestatement, Agency, §82 (1933). An affirmance of an unauthorized transaction may be inferred from a failure to repudiate it: Bestatement, Agency, §94 (1933). Comment b to that section reads: “Acquiescence may be inferred from silence, even though the purported agent was theretofore a stranger to the purported principal. Nevertheless, the latter’s silence is usually more significant where an agency relationship alrеady exists and the agent in the particular case has exceeded his powers. If such an agent reports the matter to the principal at a time or in a manner calculated to call for dissent if the principal were unwilling tо affirm, the latter’s failure to dissent, if unexplained, furnishes sufficient evidence of affirmance.” See Porter v. Patterson,
The evidence shows that the plaintiff knew that Benson had collectеd the proceeds of the insurance. One month after delivering the policies to Benson for
The reason assigned by the court for its action in directing a verdict in favor of the plaintiff is: “. . . a verdict was directed by the trial judge in favor of plaintiff, on the ground that defendant had not met its burden of producing sufficient evidence from which the jury could find or infer that plaintiff had been paid the insurance proceeds by defendant; аnd that, therefore there was no factual issue to submit to the
A somewhat similar situation arose in Zidek v. West Penn Power Company,
Since the plaintiff, under the above noted principles of agency, ratified Benson’s act of collection of the insurance proceeds this ratification logically included the power to credit or deposit same to an account in plaintiff’s name. Thus the plaintiff was paid as far as defendant was concerned. The depository, the Bryn Mawr Trust Company, then became plaintiff’s agent for collection and upon collеction assumed the role defendant formerly occupied — that of plaintiff’s debtor. The statutes and authorities are clear to the effect that the bank is the debtor of the designated principal and not of the depositor whеre such an item is so deposited. The applicable statute is the Act of June 12, 1931, P. L. 568, sec. 4, which provides: “An indorsement of an item by the payee or other depositor Tor deposit’ shall be deemed a restrictive indorsement and indiсate that the indorsee bank is an agent for collection and not owner of the item.” The same result is reached under the Uniform Commercial Code—
In its answer to plaintiff’s complaint, defеndant pleaded payment. Since this defense was not pleaded under the heading of new matter, it has been argued that a verdict could have been directed against defendant on the pleadings. But plaintiff raised no objection to the form of defendant’s answer. Any objection thereto must, therefore, be considered as waived. The issue was clear. To amend the answer would be a mere formality: Bacon v. Newtown Friends’ School, 77 D. &. C. 324, 332; Festa v. Shuman Bros., Inc., 87 D. & C. 152.
Judgment reversed and here entered for defendant non obstante veredicto.