99 Pa. Super. 513 | Pa. Super. Ct. | 1930
Argued May 6, 1930. This is an action on a policy of life insurance issued by defendant on the life of Frank Shivak in the sum of $500. No beneficiary was designated in the policy, nor did it provide that it was payable to the executor or administrator of the insured. It contained a clause headed "Facility of Payment," which is as follows: "The company may make any payment or grant any non-forfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to the company to be equitably entitled thereto by reason of having incurred expense or obligation on behalf of the insured or for the insured's burial; and the production by the company of a receipt signed by any or either of said persons or other proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and all claims under this policy have been *515 fully satisfied." Plaintiff is a niece of the insured and brought the suit in her individual right to recover the amount of the policy. She was awarded judgment in the county court of Allegheny County. An appeal was allowed by the court of common pleas. When the case came to trial in that court plaintiff established in her case that the insured died July 8, 1926, and that shortly after his death she surrendered the policy and receipt books to defendant; that on November 13, 1926, defendant refused to pay her the amount of the policy; that on November 15, 1926, she accepted from it a check for $14.82, containing the notation "in full settlement" of this policy; that at the same time she signed a receipt stating that this sum was received in full discharge and settlement of all obligations under the policy; and that she never cashed the check, but within two days her attorney tendered the check back to defendant and demanded the return of the release and policy. Her counsel admitted that the release had no bearing on the issue before the court. A non-suit was granted on the ground that plaintiff had no right of action on the policy, because the sole right of action was in the administrator or executor of the insured. This appeal is by plaintiff from the refusal to take off the non-suit.
The sole question presented for our consideration is whether there is any right of action in the plaintiff to recover on the policy. A "Facility of Payment" clause substantially identical with that in the case at bar was construed in Williard v. Prudential Life Ins. Co.,
In Lewis v. Metropolitan Life Ins. Co.,
Appellant relies upon O'Hara v. Metropolitan Life Ins. Co.,
We find no merit in the contention that after defendant refused to pay plaintiff the amount of the policy it recognized her as the beneficiary by paying her $14.82, and took a release from her, and thereby became estopped from questioning her right to enforce payment of the policy. The provisions of the "Facility of Payment" clause did not preclude the company from settling with one or more individuals as their respective interests may appeal to it, up to the full amount of the policy. The fact that the company recognized appellant as entitled to something under this clause did not estop it from interposing the defense it did when appellant sued on the policy. The court below reached the right conclusion.
The judgment is affirmed. *519