Geha v. Baltimore L. Ins. Co.

• Decision Date: 02 October 1933
• Docket Number: 124-1933
• Citation: 110 Pa.Super. 236,168 A. 525
• Parties: Geha v. Baltimore L. Ins. Co., Appellant
• Court: Pennsylvania Superior Court

168 A. 525

110 Pa.Super. 236

Geha v. Baltimore L. Ins. Co., Appellant

No. 124-1933

Superior Court of Pennsylvania

October 2, 1933

Submitted April 19, 1933.

Appeal by defendant from judgment of C. P., Cambria County September T., 1931, No. 1284, in the case of Adla Geha v Baltimore Life Insurance Company.

Assumpsit on a policy of insurance by a beneficiary. Before Reed, P J., orphans' court specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 2,000 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

Niles, Barton, Morrow & Yost and with them Percy Allen Rose, for appellants.

John M. Bennett of Weimer & Bennett, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

Plaintiff, the beneficiary in a life insurance policy in defendant company dated March 27, 1928, in the sum of $ 2,000 upon the life of her husband, Charles J. Geha, who died September 16, 1930, recovered a verdict of $ 2,000 with interest. Defendant's motions for a new trial and for judgment n. o. v. were overruled by the court below, in banc, when an appeal was taken to this court from the judgment entered upon the verdict.

The defendant contended that it was not liable because the policy, under its terms, had lapsed on April 28, 1930. The policy provided for quarter annual premiums payable in advance on or before the 27th days of March, June, September, and December in every year until the death of the insured. A grace of thirty-one days for payment of premiums was allowed by the terms of the policy, during which it remained in force. The premium due on March 27, 1930, was not paid to the company, but the beneficiary testified that George C. Horner, who had written the policy and collected the premiums, was indebted to the insured, and that during the period of grace and prior to April 28th, Horner said to the insured: "I couldn't give you any money, but at least I could pay your insurance. I will pay it for you and you don't need to bother about it." She admitted that the insured was advised by the company that the premium had not been paid and that she then went to Horner and stated to him that he had promised to pay the premium and had not done so, when Horner told her that he could not spare the money to pay it. This conversation with Horner was denied by him, but by reason of the verdict we must, for present purposes, assume the facts to be as stated by the plaintiff. She then on May 24, 1930, gave to Horner a check on the Moxham National Bank for $ 15.08 payable to the Baltimore Life Ins. Co., and received from him a receipt for the money in the following form: "Date May 23, 1930. Received from Charley J. Geha fifteen and 08/xx dollars on account of weekly premium on Policy No. . . $ 15.08. Agent: Geo. C. Horner. Emergency receipt, to be used only when the receipt book is not at hand." At the same time, Horner gave Mrs. Geha a blank application for reinstatement of the policy which she forwarded to her husband and which he signed and returned to the agent Horner. This application was as follows: "I hereby certify, that I am the person who was insured under Policy No. 0, issued by The Baltimore Life Insurance Company, of Baltimore, Md., on the . . . . day of . . . . 19 . . and that said policy is lapsed for non-payment of premium. I hereby request the said company to revive the same from date of lapse and as a condition precedent thereto, hereby declare that I am in good health at the present time and free from any disease whatsoever to the best of my knowledge and belief. Witness my hand this . . . . day of . . . . 19. . Applicant's signature: Charles J. Geha."

Another premium fell due on June 27. On July 26, 1930, the beneficiary gave the agent Horner another check on the same bank for the same amount to the order of the company and received in return a receipt dated the same day. This receipt contained, inter alia, the following: "It is understood and agreed by both the company and the person named hereon as a former policyholder, that all monies receipted for hereon have been paid by the former policyholder herein mentioned, (or for him or her), on account of the revival of the policy herein mentioned; that such policy is now lapsed, and is not in force nor will it be considered in force by either the said company or the said former policyholder until all back premiums have been paid in full; nor until the said former policyholder has furnished the said company with a certificate showing that he (or she) is in perfect health. If such certificate is satisfactory to the said company, the money receipted for hereon may be transferred to the regular premium receipt book belonging to the policy, and the policy placed in force under its terms."

The first position of the plaintiff is that the insurance company was estopped from claiming a forfeiture by the promise of the agent to pay the premium due in March, 1930, on account of a sum which the agent owed the insured. We are unable to agree with this contention. In making such a promise, Horner was the agent of the insured and not of the insurance company. An intolerable situation would be created if such an agent might use the funds of an...