Cunningham v. Smith's Administrator

• Citation: 70 Pa. 450
• Parties: Cunningham <I>et al. versus</I> Smith's Adm'r.
• Decision Date: 08 February 1872
• Court: United States State Supreme Court of Pennsylvania

70 Pa. 450

Cunningham et al. versus Smith's Adm'r.

Supreme Court of Pennsylvania.

January 31, 1872.

February 1, 1872.

February 8, 1872.

January 31st and February 1st 1872.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 231, to January Term 1871.

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J. B. Gest and G. W. Thorn, for plaintiffs in error.—The deposition of Poey neither proved nor tended to prove any material fact in issue; the evidence offered must correspond with the allegations and be confined to the point in issue. This rule excludes all evidence of collateral facts. Such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them: Greenl. Ev. §§ 51, 52; Weidler v. The Farmers' Bank of Lancaster, 11 S. & R. 134. Neither the death of Jerome Smith, nor the time of his decease, was put in issue by the pleadings. The general issue admits the character in which the plaintiff sues as set out in the declaration Carpenter and Rose, overseers, v. Whitman, 15 Johns. 208; Kennebec Purchase v. Call, 1 Mass. Rep. 483; State Treas. v. Wiggins, 1 McCord 568; Truax v. Truax, 1 Pennington 166; Floyd v. Breckenbridge, 4 Bibb 14; Henderson's Admr., Id. 391; Thomas v. Tanner, 6 Monroe 52; Chaplain v. Tilley, 3 Day 303. There was no plea in abatement or other plea putting in issue the right of the plaintiff to sue as administratrix: Conard v. Atlantic Ins. Company, 1 Pet. U. S. Sup. Ct. 386; and therefore the death of intestate was admitted. The assignment vested the right to receive the money in the assignee: Angell on F. & L. Ins., ch. xvi., sect. 326, p. 361; Harrison v. McConkey, 1 Johns. Ch. R. 34; Palmer v. Merrill, 2 Cush. R. 282; Fortesque v. Barnett, 3 M. & K. 36.

It is not necessary that the assignee should have any interest; he stands on the rights of the party who effected the insurance: Ashley v. Ashley, 3 Simons 149; Barber v. Morris, 2 Mood. & Rob. 62. A man may insure his life and present the policy as a gift to a friend: Ins. Co. v. Robertshaw, 2 Casey 191; Elliott's Appeal, 14 Wright 80. The defendants having paid the premium on the policy, they were entitled to the benefit of the same: Bruce v. Gardon, Law Rep. 8 Equity 429; 15 Id. 32; Godsal v. Webb, 2 Keene Ch. R. 99.

A voluntary assignment by a person of a policy of insurance on his own life is good as against his executors and administrators: Elliott's Appeal, 14 Wright 80; Ashley v. Ashley, 2 Simons' R. 149; Valton v. The Nat. Ins. Society, 22 Barb. 9.

A scintilla of evidence or a mere surmise that the contract was other than the writing showed, would not justify the judge in leaving the case to the jury: Railroad v. Hummell, 8 Wright 377; Cotton v. Wood, 98 Eng. Com. L. Rep. 568; Howard Express Co. v. Wile, 14 P. F. Smith 201; Elliott v. Ins. Co., 16 Id. 22.

The defendants had an insurable interest on the life of Smith by reason of their contract with McCann & Co., and were interested in their future profits: Valton v. Nat. F. L. Asso. Soc., 19 Barb. 9; Morrell v. Trenton Ins. Co., 10 Cushing 282; Miller v. Eagle L. Ins. Co., 2 E. D. Smith 268.

The sum to be received is not limited by the amount of interest: Runyon on Life Ins. 23, 4; Dalby v. London Life Ins. Co., 15 C. B. 365; Law v. London I. L. P. Co., 19 Jurist 178.

G. Junkin, for defendant in error.

The opinion of the court was delivered, February 8th 1872, by SHARSWOOD, J.

We are of opinion that the evidence offered by the plaintiff below and received by the court under exceptions by the defendants, which forms the subject of the first three specifications of error, was irrelevant and inadmissible. More than that, it was calculated to distract and divert the attention of the jury from the only true point in issue, which was, whether the assignment of the policy on the life of Jerome Smith by the Connecticut Mutual Life Insurance Company, No. 88,435, to the defendants was absolute or as collateral security for advances by the defendants. That this was the true and only question which arose upon the evidence, is abundantly clear, and indeed is not disputed. The only ground upon which it has been attempted to sustain the admission of the evidence is that it proved the fact of the death of the insured. It is said that this fact was essential to the plaintiff's recovery, and that although it was an admitted fact, the plaintiff was not bound to accept the admission, but could insist on proving it, and if the evidence of it gave her any collateral advantage with the jury she was entitled to the benefit of it. This may be true in general, but it is not true when the fact in question is conclusively admitted by the pleading, as was the case here. The action was by the plaintiff as the administratrix of Jerome Smith. There was no plea in abatement denying the death of Jerome Smith, and setting up the consequent invalidity of the letters of administration. The letters are not only in all cases primâ facie evidence of the death of the person on whose estate they are granted, but when there is no plea to them and consequently no issue made upon the grant, they are conclusive evidence of the fact of death: 1 Greenl. on Ev. § 550; Newman v. Jenkins, 10 Pick. 515; McKimm v. Riddle, 2 Dall. 100; Ayers v. Musselman, 2 P. A. Browne 115.

The next six specifications of error, which are to the answers of the court below to the points of the plaintiff and defendants, may all be resolved into one question, whether there was any sufficient evidence to submit to the jury upon which they could find that the assignment of the policy No. 88,435 was as a collateral security for present or future indebtedness by the assignor to the assignees. The defendants may have had such an interest in the life insured under the contract of September 1st 1868 as would have entitled them to insure his life in their own names. That, however, might have been a question. But Jerome Smith's interest in his own life was unquestionable, and if he was willing to insure himself with their money and then assign the policy to them, there is no principle of law which can prevent such a transaction. Indeed this is not controverted. Now, not only was the assignment in question on the face of it simple and absolute, but it was specially expressed so to be under the hand and seal of Jerome Smith himself. "I hereby assign, transfer and set over absolutely," is its language. Mr. Tilden, the agent of the insurance company, by whom the assignment was drawn and witnessed, testified, "Jerome Smith said it was...