Mutual Protection Life Ins. Co. v. Laury

• Decision Date: 28 March 1877
• Citation: 84 Pa. 43
• Parties: The Mutual Protection Life Insurance Co. <I>versus</I> Laury.
• Court: Pennsylvania Supreme Court

84 Pa. 43

The Mutual Protection Life Insurance Co. versus Laury.

Supreme Court of Pennsylvania.

March 2, 1877.

March 28, 1877.

March 2d 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Lehigh county: Of January Term 1876, No. 177.

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R. E. Wright & Son, for the plaintiff in error.—There was but a scintilla of evidence to go to the jury and that is not enough: Express Co. v. Wile, 14 P. F. Smith, 204; Baisch v. Oakeley, 18 Id. 99. Sending notices of death did not tend to prove a waiver and was not inconsistent with a forfeiture; it would not therefore create an estoppel, which alone is the ground of waiver in such cases: Elliott v. Lycoming County Mutual Ins. Co., 16 P. F. Smith 26; Ins. Co. v. Slockbower, 2 Casey 199.

The assessment sent to the company by Laubach, in Laury's name, was never accepted, and the action of the company in regard to it affords no evidence of a waiver.

Edward Harvey and William H. Sowden, for the defendant in error.—Where there is any evidence which alone would support a verdict, it must go to the jury, no matter how strong the countervailing proof is: Express Co. v. Wile, supra; Baisch v. Oakeley, supra. The sending of notices of assessments to Laury after the alleged forfeiture shows that the company still considered the policy in force, and proof of this was enough to warrant the jury in finding a waiver.

Mr. Justice PAXSON delivered the opinion of the court, March 28th 1877.

The principal question upon the trial of this cause in the court below, as well as upon the argument here, was whether the company had waived a forfeiture under the third clause of the conditions of the policy. All of the assignments of error, from the fourth to the thirteenth, bear upon this question, and may be considered together.

The contention of the plaintiffs in error was that the learned judge submitted the question of waiver to the jury upon insufficient evidence. His answers to the plaintiff's fifth, sixth, seventh and eighth points, left the jury at liberty to pass upon the question of fact, whether the company had collected from Laury assessments made after the alleged lapse of the policy. Upon this point there was not sufficient evidence to submit to the jury. A scintilla is not enough: Express Co. v. Wile, 14 P. F. Smith 204. The only evidence was that the notice of assessments intended for Laury was received by Adam Laubach, his brother-in-law, who, of his own motion, enclosed the amount, $5.20, to the company. The letter containing the money was received by the company, and under the impression that it came from Laury, the secretary addressed a letter to him under date of April 17th 1873, in which he said: "Your letter of the 14th inst., containing $5.20, is received. In examining your account I notice you have no credit for Gries, Moody, Fagundus and Cyphers. Will you please inform us how this is? Possibly you have not received the notices, or you may not have credit because the payment has not been reported to the office by the agent. An early answer is respectfully requested." This letter was written two days after Laury's death. Immediately, upon learning the facts, the company sent the money to...