184 A. 546 (Pa.Super. 1936), 27-1936, O'Brien v. Sovereign Camp of Woodmen of World

Docket Nº:27-1936
Citation:184 A. 546, 122 Pa.Super. 39
Opinion Judge:Baldrige, J.
Party Name:O'Brien v. Sovereign Camp of the Woodmen of the World, Appellant
Attorney:James G. McDonough, with him Clarence J. Wing, for appellant. Edward J. Kelly, with him John P. Kelly, Clarence Balentine, and W. J. Fitzgerald, of Kelly, Balentine, Fitzgerald & Kelly, for appellee.
Judge Panel:Before Keller, P. J., Cunningham, Baldrige, Parker, James and Rhodes, JJ.
Case Date:April 27, 1936
Court:Superior Court of Pennsylvania
 
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Page 546

184 A. 546 (Pa.Super. 1936)

122 Pa.Super. 39

O'Brien

v.

Sovereign Camp of the Woodmen of the World, Appellant

No. 27-1936

Superior Court of Pennsylvania

April 27, 1936

Argued: March 3, 1936

Appeal by defendant, from order and judgment of C. P., Lackawanna Co., May T., 1933, No. 232, in case of Eugene O'Brien v. The Sovereign Camp of the Woodmen of the World.

Assumpsit. Before Leach, P. J., without a jury.

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

Findings and judgment thereon for plaintiff. Defendant appealed.

Error assigned, among others, was dismissal of exceptions to findings of facts and conclusions of law.

Affirmed.

James G. McDonough, with him Clarence J. Wing, for appellant.

Edward J. Kelly, with him John P. Kelly, Clarence Balentine, and W. J. Fitzgerald, of Kelly, Balentine, Fitzgerald & Kelly, for appellee.

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

OPINION

[122 Pa.Super. 41] Baldrige, J.

The plaintiff in this action of assumpsit is the beneficiary in a certificate of insurance issued by defendant on the life of Patrick O'Brien.

On April 28, 1927, the insured, then 50 years of age and unmarried, arose about 4 a. m., left his boarding house in a suburban section of Scranton, and never returned. About two months later, some boys found the partly decomposed body of a man on West Mountain, not far distant from where O'Brien had lived. Neither the police, coroner, nor anyone else was able to identify it and the undertaker was directed to bury the body where it was found. A sister, Nellie O'Brien, who had been living away from Scranton, returned sometime thereafter. She made an investigation and became convinced that this body was that of her brother. She thereupon notified the plaintiff, a resident of Chicago, of their brother's death.

On July 12, 1929, the plaintiff forwarded to the defendant proofs of death containing the facts then known and the beneficiary certificate. On September 12, 1929, the body was exhumed, and, after some further examination, it was buried in the O'Brien

Page 547

cemetery lot. On September 23, 1930, the defendant wrote a letter to plaintiff's attorney in Chicago, wherein it was stated, in part, as follows: "Replying to your communication of the 17th inst. relative to the above case we wish to advise that it has been necessary to withhold payment of the claim under the certificate held by Patrick O'Brien by reason of the fact that no satisfactory proofs of death have been submitted . . . . If any definite proof can be submitted showing that the body of the man found on West Mountain was in fact the body of Patrick O'Brien, the matter will be given further consideration [122 Pa.Super. 42] but until positive identification can be made this association can admit no liability." In the meantime, suits were instituted in Lackawanna County by the sister under other insurance policies, and trials were had thereon. On February 25, 1933, defendant wrote, evidently in response to a letter not of record, to plaintiff's attorney: "We shall be glad to receive and examine a copy of the testimony given in the case or cases against the Prudential Life Insurance Company and will give the same careful consideration. If the claim for death benefit under this certificate is finally rejected we will return the beneficiary certificate to the designated beneficiary or his authorized representative."

Finally, on March 6, 1933, the beneficiary certificate was returned to plaintiff. This was the first unequivocal denial of liability. Suit was brought, March 28, 1933, and came on for hearing before Judge Leach, without a jury in accordance with agreement of the parties. Judgment nisi was entered in favor of the plaintiff for the sum of $ 1,345. Exceptions thereto were dismissed and judgment was made absolute. This appeal followed.

The evidence of identification adduced at the trial was sufficient to warrant the trial judge's holding that the body found was that of the insured. That feature of the case is not seriously pressed in this appeal. Suit not having been instituted until March 28, 1933, the real dispute is whether an action can be maintained under the following provision in the policy: "No legal proceedings for recovery under a certificate shall be brought within ninety days after receipt of proofs of death by the Sovereign clerk, and no suit shall be brought upon a certificate, unless said suit is commenced within one year from the date of death." It must be conceded that the plaintiff has the burden of showing a valid reason why this limitation is not binding. It is obvious at once from the facts stated that the plaintiff could not have brought suit within the [122 Pa.Super. 43] one-year limitation, as it...

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