144 Pa. 223 | Pennsylvania Court of Common Pleas, York County | 1891
Opinion,
The appellant was the holder of two policies of two thousand dollars each upon the life of Frank Shaffer. That he was a creditor of Shaffer at the time the first policy was taken out, to the amount of five hundred dollars, was not disputed, nor was any serious contention raised as to excess of insurance. The second policy was taken out some time after the first, and the defendant alleges that it was done at the request or suggestion of his debtor. He testified: “ Why, he (the debtor) came to me, and told me that he thought that the other policy would not pay me for what I had done for him, and he thought I had ought to take out another one; and if I would promise to go to the expense of burying him, and see that he was nicely
This suit was brought by Mrs. Shaffer, as administratrix of her husband, to recover the balance received by the defendant on the two policies over and above the debt and interest and costs of the insurance. The court below held that as to the first policy there could be no recovery, as the debt proved was ample to take it out of the speculative class; and that, as to the second policy, they must also find for the defendant, if they believed there was the indebtedness, as testified by the defendant, on the second policy. The jury found for the plaintiff the amount collected upon the second policy. See third assignment. It would not have been error to refuse the defendant’s seventh point, embraced in this assignment, for the reason that it' prayed for a binding instruction. The question of the existence and amount of the indebtedness, upon which both policies were based, could not properly have been withdrawn from the jury. But we think the learned judge erred in separating the policies, thus making the second policy depend upon the subsequent indebtedness. If, in point of fact, the first policy was insufficient to cover the debt, the defendant had the right to take out an additional policy for that purpose, and its validity must be measured by the whole amount of existing indebtedness. Thus, the question upon another trial will be whether an insurance of four thousand dollars is dis-proportioned to the whole indebtedness existing at the time the second policy was issued; and if the defendant agreed that, in consideration of the second policy, he would pay Shaffer’s funeral expenses, and has actually paid them, we see no reason why the amount thereof should not be included in the indebtedness. It is true, it was not an existing debt at that time,
As the case must go back for a re-trial, it is proper to say that we think the learned judge erred in holding that the amount, paid by defendant for counsel fees, in collecting the money from the insurance companies, could not be deducted from the amount in his hands in case of a recovery by the plaintiff. The money was collected by suit, and a portion only of the amount of the policies paid. The employment of counsel was therefore a necessity. The payment of the money was the result of their efforts ; and we think the amount paid them, as fees for such services, is properly deductible from the fund realized. .This was a suit for money had and received, and the defendant is not properly chargeable with what never came into his hands. It matters not whether the counsel fees were deducted from the fund before he received it, or whether he paid them out of said fund after it came into his hands. The effect is the same, and the defendant can only be charged with the net proceeds.
This disposes of the first and second assignments. The third has been already sufficiently referred to. The fourth and fifth do not conform to the rules of court, while the sixth relates to a subject that is not assignable as error. The remaining assignments do not require discussion.
Judgment reversed, and a venire facias de novo awarded.
