47 P. 650 (Mont. 1897), Mulville v. Pacific Mut. Life Ins. Co. of California

Citation:47 P. 650, 19 Mont. 95
Opinion Judge:BUCK, J. (after stating the facts).
Attorney:Wm. Scallon, for appellant. Stapleton & Stapleton, for respondent.
Judge Panel:PEMBERTON, C.J., and HUNT, J., concur.
Case Date:January 18, 1897
Court:Supreme Court of Montana

Page 650

47 P. 650 (Mont. 1897)

19 Mont. 95




Supreme Court of Montana

January 18, 1897

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by Samuel Mulville, administrator of the estate of Charles F. Young, deceased, against the Pacific Mutual Life Insurance Company of California. There was a verdict for plaintiff, and from an order granting defendant a new trial plaintiff appeals. Affirmed.

This action was brought in the lower court to recover the amount of an accident insurance policy taken out by one Charles F. Young in the defendant company. Young was injured by a train of cars operated by a railroad company in Silver Bow county, and died almost immediately from the effects of his injuries. Letters of administration upon his estate were issued to the public administrator, George Pascoe, of Silver Bow county, and subsequently to the present plaintiff. The complaint sets forth a cause of action under the terms of the policy. The answer sets up two defenses: First, contributory negligence on the part of the deceased Young; and, secondly, a settlement and compromise between the insurance company and the public administrator, Pascoe, while he had charge of the estate. The replication, among other things, sets forth bad faith between the public administrator, Pascoe, and the company, in the settlement and compromise. As to this portion of the replication, however, plaintiff offered no evidence. In order to maintain its second defense, the defendant offered in evidence an order of the probate judge authorizing a compromise, and a receipt from the public administrator, Pascoe. This order and receipt were as follows: "In the Probate Court of Silver Bow County, Montana Territory, March Term, 1887. Journal Entry, April 27, 1887, Journal B, Page 349. [Title of Cause.] It appearing to the satisfaction of this court that it will be for the best interest of the said estate that the claim for insurance money held under policy of insurance issued to said deceased by the Pacific Mutual Accident Life Insurance Company of California be compromised, it is hereby ordered, and the administrator of said estate is hereby directed to settle said claim, and make a compromise with said insurance company to the best advantage possible. Caleb E. Irvine, Probate Judge. Dated April 27, 1887." The receipt reads thus: "Office of Curtis & Majors, Attorneys at Law, Real Estate and Insurance Agents, and Mining Brokers. Money Loaned on Real Estate, and Special Attention Given to Collections. Butte, Montana, April 27, 1887. Received of the Pacific Mutual Life Insurance Company, by the hands of Thomas Bennett, agent for said company, the sum of two hundred dollars for any amounts now due upon policy No. 5,565 issued by the said company to one Charles F. Young on the 9th day of February...

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