Dominco v. The Prudential Ins. Co. of America

• Decision Date: 01 March 1912
• Docket Number: 22-1911
• Citation: 49 Pa.Super. 156
• Parties: Dominco v. The Prudential Insurance Company of America, Appellant
• Court: Pennsylvania Superior Court

49 Pa.Super. 156

Dominco v. The Prudential Insurance Company of America, Appellant

No. 22-1911

Superior Court of Pennsylvania

March 1, 1912

Argued October 20, 1911

Appeal by defendant, from judgment of C.P. No. 1, Phila. Co.-1908 No. 838, on verdict for plaintiff in case of Pasquale Dominco, Administrator of the Estate of Fannie Dominco deceased, v. The Prudential Insurance Company of America.

Assumpsit on a policy of life insurance. Before Bregy, P. J.

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

Verdict and judgment for plaintiff for $ 184. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Frederick J. Shoyer, with him Henry Arronson, for appellant. -- The parties to a contract under which payments of money are required have a right to make an agreement as to the manner in which such payments shall be proved: Wood v Worsley, 2 H. Bl. 574; McNicholas v. Ins. Co., 191 Mass. 304 (77 N.E. 756); U.S. v. Robeson, 34 U.S. 319; Hutson v. Ins. Co., 50 S.E. 1000; Lauze v. Life Ins. Co., 74 N.H. 334 (68 A. 31); Langstaff v. Ins. Co., 54 A. 518; Ins. Co. v. Davis, 95 U.S. 425.

It is well settled by a multitude of authorities that as to waiver and estoppel arising during the life of the policy agents have no authority to bind the company where it appears by the terms of the policy that they had no authority to do so: Jenkins v. Ins. Co., 58 Mo.App. 210; Porter v. Ins. Co., 160 Mass. 183 (35 N.E. 678); Ins. Co. v. Norton, 96 U.S. 234; Northern Assurance Co. v. Bldg. Assn., 183 U.S. 308 (22 S.Ct. 133).

Where there is a limitation in the policy as to the authority of an agent, parol evidence is not admissible to contradict or vary the terms of the policy or to show that an entirely different contract was made with the agent. Our own cases are sufficient to fully sustain this position: Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348; Pottsville Mut. Fire Ins. Co. v. Horan, 11 W.N.C. 198; Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; Susquehanna Ins. Co. v. Swank, 102 Pa. 17; Cooper v. Ins. Co., 50 Pa. 299; Meyer-Burns v. Ins. Co., 189 Pa. 579; Rinker v. AEtna Life Ins. Co., 214 Pa. 608; Scientific American Compiling Department v. Creighton, 32 Pa.Super. 140; Russell v. Prudential Ins. Co., 176 N.Y. 178 (68 N.E. 252).

Joseph R. Embery, for appellee. -- This case is the same as East v. Prudential Ins. Co., 11 A.D. 190 (42 N.Y.S. 584).

A similar question arose in the case of McNicholas v. Prudential Ins. Co., 191 Mass. 304 (77 N.E. 756).

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

HEAD, J.

On July 16, 1906, the defendant company issued to one Fannie Dominco its policy numbered 22,087,370 insuring her life in the sum of $ 100. In accordance with the requirements of the policy and the custom of the company it then delivered to her a book in which the agent of the company collecting the weekly premiums was to enter the same with his name or initials showing the receipt of the premium by the company. The book was prepared with a caption of three columns, the first of which contained the number of the policy, the second the name of the insured, and the third the amount of the weekly premium. On November 19, 1906, the company issued a second policy to the same insured numbered 22,517,444 insuring her life in the like amount of $ 100, each of the policies carrying a weekly premium of ten cents.

The woman whose life was insured by these two policies died in February, 1908. Upon the receipt of proofs of death the company promptly paid the amount of the policy first named but declined to recognize its liability under the second one mentioned. The surviving husband, having first taken out letters of administration on the estate of his wife, brought this action to enforce the payment of the insurance covered by the second policy. The company filed an affidavit of defense, which, along with some general allegations that the insured had not complied with the obligations imposed upon her by the policy, specifically averred as follows: " That no premiums were paid on said policy since March 18, 1907, and according to provision 3 as contained in the third page of the said policy, which was made a part of the contract, to wit: '3. -- Policy when void. -- This policy shall be void if the said weekly premium shall not be paid according to the terms hereof,' as is more fully set forth in a copy of the said policy set out in and attached to the plaintiff's statement of claim." A plea having been entered, the cause went to trial on the issue thus raised and resulted in a verdict for the plaintiff upon which judgment was entered and the defendant takes this appeal.

The able counsel for the appellant rests his case mainly on two grounds, (1) that the learned trial judge under the evidence should have given a binding direction to the jury to render a verdict for the defendant, or, failing in this, should have subsequently granted a motion for judgment non obstante veredicto; (2) that it was error under the provisions of the policy for the trial judge to have received evidence of the plaintiff and his witnesses tending to show, that at a period of time before the death of the insured, the receipt book, at the request of the company, had been surrendered for the purpose of correcting some mistake and that during that period he had paid the proper premiums to the collecting agent, taking loose receipts therefor, which, upon the return of the book, were delivered to the agent.

1. It must be apparent, we think, that if the plaintiff, by himself and his witnesses, produced oral testimony tending to show that the policy on which the suit was brought had not been permitted to lapse for nonpayment of the premium, either at the date set up in the affidavit of defense or at any other time prior to the death of the insured, the learned trial judge could not have done otherwise than submit the question of fact to the jury under proper instructions. It is not for us to discuss or consider the credibility of the witnesses nor to determine on which side of the issue raised the preponderance of the testimony existed. To do this would be to invade what every one concedes is the exclusive province of the jury.

An examination of the receipt book which was offered in evidence first of all shows, in so far as the book speaks for itself that all of the moneys therein receipted were on account of the policies on the life of Fannie Dominco and on no other account. Its caption contained her name twice and no other name; the numbers of her two policies and no reference to any other. From the date of the issue of the first policy down to December 3, 1906, it shows a regular weekly charge against her of ten cents, the premium on her first policy and the payment of these sums. On the day last mentioned, which was shortly after the issue of the second policy, the amount was increased to twenty cents, and from...