American Life Ins. Co. v. McAden

• Decision Date: 05 October 1885
• Docket Number: 152
• Parties: American Life Insurance Co. v. McAden
• Court: Pennsylvania Supreme Court

1 A. 256

109 Pa. 399

American Life Insurance Co. v. McAden

No. 152

Supreme Court of Pennsylvania

October 5, 1885

March 31, 1885

ERROR to the Court of Common Pleas No. 3 of Philadelphia county: Of July Term 1884, No. 152.

Assumpsit by Rufus Y. McAden and Mary F. McAden his wife in her right against the American Life Insurance Company. The narr. was in five counts: the first four recited a policy of insurance issued by the defendant company on the life of Rufus Y McAden, in favor of his wife, averring that after certain premiums had been paid and accepted, amounting to over $4000 on one occasion when a premium fell due a delay of one or two days occurred in tendering it, whereupon the defendant refused to receive it, and declared the policy forfeited. The fifth count was as follows:

V. Plaintiff complains that defendant is indebted to her for money had and received to her use, to wit, on the premiums paid in on said policy of insurance, with interest from the date of each payment which defendant wrongfully detains from plaintiff, although defendant promised to pay the plaintiff said sums of money when demanded; but although often requested so to do refuses and wholly neglects so to do, to this plaintiff's damage, $15,000, wherefore she brings suit.

Plea, non assumpsit.

On the trial, before FINLETTER J., the plaintiff offered the policy in evidence, but upon the defendant's objection that, being under seal it was not admissible in evidence in this action of assumpsit, the court refused to admit it. The defendant did not put the policy in evidence.

The president of the defendant company testified as follows: -- Mr. McAden came to see me after the lapse of his policy. I simply denied any liability of any sort whatever, then or since then; nor did I offer him any money whatever. . . . He thought it was a very hard case. I told him he was the president of a bank, and ought to know that promptness was essential in all such matters, and I told him it was our rule to forfeit a policy when the premium was not paid; that we were not in North Carolina now, and we were not taking twenty thousand dollar policies. He was very desirous for us to take the premium. I declined to do so, and told him there was no liability whatever on our part, and he must take the consequences of it; that I could not help it, and that it was his fault, and not mine.

Cross-examined: -- Q. Then you refused to return to this gentleman a single cent of all he had paid?

A. I did.

Q. He had paid over four thousand dollars to your company, had he not?

A. I had forgotten how much he had paid. He had an insurance of twenty thousand dollars for ten years.

Q. I did not ask you about insurance. The fact is that you got his money, and you refused to return him a dollar of it?

A. We had received from Mr. McAden money, and we refused to return him a dollar back.

The defendant requested the judge to instruct the jury that their verdict must be for the defendant, which point the judge answered in the general charge, which was, in full, as follows: --

This is an action for money had and received by the defendant from the plaintiff. To recover, the plaintiff must show, First. That the defendant received the money from him which he now claims. Second. That the plaintiff demanded the money from defendant. And Third. That it refused upon that demand to pay the money to him. These facts, the fact that the money had been paid and that it was demanded, have been sworn to by the plaintiff and I do not understand that there is any evidence in this case to show that the money was not received, or that it has been paid back in full, or any part of it, by the defendant to the plaintiff.

The excuse which was given for not paying at the time it was demanded, and the defence now before you, is that at the time the money was demanded by the plaintiff from the defendant, the policy of insurance had lapsed, and that he had no claim, therefore, upon the defendant for any money whatever.

Now, if this be a good legal reason for not paying back the money, the policy itself would be, and is, the very best evidence of that fact. That policy, as it is, is not in evidence, and has not been received at the instance of the plaintiff, and it has not been offered by the defendants. The policy, therefore, and its contents, are not before you, and you can know nothing about it; nor can you say what the terms or conditions of that contract or policy were.

Now, neither party to a contract, neither the plaintiff nor the defendant, who are parties to the contract in law have a right to say that that contract is forfeited, or void, or null. That is a matter which depends upon facts, or may depend upon the law as applicable to those facts; and that is a question entirely for a court and jury to determine. Wherever there is an instrument in writing, it is for a court and jury to determine whether it is void, or lapsed or forfeited, or of noneffect, depending, as I have already said, upon whatever the facts may be in relation to that question, and upon the law as the court may give it to the jury.

In this case, you understand that the reason for the defendants not paying the money to the plaintiff then and now, is that there was a lapse of a policy of insurance. Is there any evidence -- and it is for you to say -- of a lapse or forfeiture of a policy of insurance, or of such a lapse of such a policy of insurance, or contract, as would excuse these people from not paying the money at the time it was demanded, or is a legal reason now? If there is no evidence of this fact, then there is no legal reason why the money should not have been returned; and in that event your verdict must be for the plaintiff. If, however, the jury find, from the evidence, that the policy has lapsed, the verdict ought to be for the defendant.

That, I think, answers the point submitted by the defendant.

Verdict for plaintiff for $5,319.90, and judgment thereon. The defendant took this writ of error, assigning for error, the answer to its point and the charge as above given.

The judgment is affirmed.

Henry Hazlehurst and Richard C. Dale, for the plaintiff in error. -- The policy was properly excluded. Penna. Mut. Society v. Corley, 39 Leg. Int., 139. Though the action is in assumpsit the narr. is not for money had and received, simply, but is based on the sealed instrument as the foundation of the cause of action. The fifth count is not a common count, because it claims to recover "the premiums paid in on said policy of insurance." No testimony should have been received under this count which referred to the specialty as the cause of action. Assumpsit can not be maintained where there has been originally an express contract, under seal, which relates to the same subject matter: Waite's Actions and Defences, vol. 2, p. 361; Hinkley v. Fowler, 15 Maine, 285; Andrews v. Callender, 13 Pick, 484; Codman v. Jenkins, 14 Mass. 93, MacManus v. Cassidy, 66 Pa. 260.

There can be no promise to return premiums, which were directly applied to the maintenance of the policy, and were not had and received to the use of the plaintiff: Rose v. Himely, 4 Cranch, 241; Ins. Co. v. Sanders, 36 N.H. 252. Money paid under an admitted claim of right, cannot be recovered in any event.

Richard P. White, (with him Lewin W. Barringer and George H. Earle, Jr.,) for the defendants in error. -- The policy was admissible in evidence, not as the foundation of the action, for we did not sue upon it, but as an item of evidence showing the relations of the parties and the amount we were entitled to recover in assumpsit for money had and received: Charles v. Scott, 1 S. & R., 294; Mehaffy v. Share, 2 P. & W., 361; Carrier v. Dilworth, 59 Pa. St., 406. We proved the defendant's repudiation of the contract, and our rescission of it, which made out one cause of action, but the defendant, having kept the policy out, failed to show its right to forfeit, or any justification for its refusal to return the premiums. Even where the company shows a stipulation that premiums shall be paid on the very day they fall due, a forfeiture cannot be allowed, unless the provision is clear and distinct, and shows a right of forfeiture after the strictest interpretation in the assured's favor: McAllister v. Company, 101 Mass. 560; Bliss on Insurance, Sec., 186; May on Insurance, Sec. 342.

Before MERCUR, C.J., GORDON, PAXSON, TRUNKEY, STERRETT and CLARK, JJ. GREEN, J., absent.

OPINION

Mr. CLARK, Justice

The evidence shows that in May, 1869, a policy of life insurance was issued by the defendant, the American Life Insurance Company, to the plaintiff, Mary F. McAden in the sum of $20,000 upon the life of...