Norristown Title Co. v. Hancock Ins. Co

• Decision Date: 17 February 1890
• Docket Number: 179
• Parties: NORRISTOWN TITLE CO. v. HANCOCK INS. CO
• Court: Pennsylvania Supreme Court

19 A. 270

132 Pa. 385

NORRISTOWN TITLE CO. v. HANCOCK INS. CO

No. 179

Supreme Court of Pennsylvania

February 17, 1890

Argued February 7, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.

No. 179 January Term 1890, Sup. Ct.; court below, No. 12 March Term 1889, C.P.

On December 8, 1889, the Norristown Title, Trust and Safe Deposit Company, guardian of William Legg, a minor, brought assumpsit against the John Hancock Mutual Life Insurance Company, upon a policy of insurance issued by the defendant upon the life of Annie Cruikshank. The defendant pleaded non-assumpsit.

At the trial on October 15, 1889, it was made to appear that on April 21, 1886, the defendant company issued to Annie Cruikshank a policy of insurance providing as follows:

"The John Hancock Mutual Life Insurance Company, . . . in consideration of the payment of forty cents, at noon on Wednesday of each week, during the life of Annie Cruikshank the insured under this policy, hereby agrees to pay to the beneficiary named in the application for this policy, within twenty-four hours after satisfactory proof of the death of said insured, the amount stipulated in the schedule below. This policy is made and accepted upon the following conditions: If any of the statements or answers made in the application for this policy are in any respect untrue; or if any assignment hereof is made; or if any additional insurance is now in force or shall hereafter be effected in this [sic] company (except as hereinafter permitted) without the written consent of the secretary of the company; . . . then this policy shall be null and void," . . . .

The plaintiff offered this policy in evidence, to be followed by evidence showing that the plaintiff's ward was the beneficiary therein mentioned.

Objected to by the defendant for the reason that there was nothing on the face of the policy which showed that the plaintiff was entitled to recover.

By the court: Offer admitted; exception.

The plaintiff then offered the application referred to in the policy, for the sole purpose of showing the beneficiary named therein, said beneficiary being William Legg.

Objected to by the defendant.

By the court: Objection sustained.

The plaintiff then called one Robbins, and offered to prove by him that he was the general agent of the defendant company at the time the policy was issued and that he took the insurance, and to show by him who the beneficiary in the policy was.

Objected to.

By the court: Objection overruled; exception.

The witness then testified that in April, 1886, he was solicitor and agent of the defendant company; that he solicited insurance of Annie Cruikshank, insured her life and delivered to her the policy, which was for the same amount as the policy in suit, though he was unable to remember the number of it and say whether or not it was the identical policy sued on; that, outside of any written application, he knew that the beneficiary under that policy was William Legg, who was the son of Annie Cruikshank.

The defendant admitted that the plaintiff was the lawful guardian of William Legg; that Annie Cruikshank died on October 8 1888, and that proper proofs of her death were furnished to the company; that the policy was in force at the time of her death, and that the amount for which the policy was issued was $640.

At the close of the testimony the court, SWARTZ, P.J., instructed the jury to find a verdict in favor of the plaintiff for the amount of the policy, with interest from the date of the death of the assured; exception.

The jury rendered a verdict for the plaintiff for $679.80. A motion for a new trial was subsequently overruled, opinion by SWARTZ, P.J., in part as follows:

The plaintiff called Mr. Robbins, an agent and solicitor for the defendant company, to show that William Legg, a son of Mrs Cruikshank, was the beneficiary of the policy. Under objection, we allowed the witness to make the proof, provided he could do so without any reference to or aid from the application, which was in writing. . . .

Upon the trial, as well as upon the motion for a new trial, the defendant contended that there was error in the admission of this evidence. No objection was directed to its sufficiency, only to its competency; this was the sole question discussed. After further examination and deliberation we are still of the opinion that this evidence was competent.

The act of May 11, 1881, § 1, P.L. 20, provides that policies "shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, and the by-laws be considered a part of the policy or contract between the parties."

Failure to comply with the provisions of this act does not make void the contract of insurance. If the contract can be established without the aid of the written application it may be enforced. The act declares that no such application shall be given in evidence, nor shall such application be considered a part of the contract between the parties. The written application drops out of the case; the contract is verbal, so far as its terms are not set forth in the policy. In Imperial F. Ins. Co. v. Dunham, 117 Pa. 473, the court say: "The application, therefore, constituted no part of the policy or of the contract between the parties, and was not receivable in evidence. The case is to be considered as if no such paper existed." If the paper has no existence, we see no reason why Robbins, the agent who took the insurance, should not name the beneficiary as given to him by the insured. This is not giving in evidence indirectly the contents of the written application, but the giving of a fact which existed before there could be a written application. The name of the beneficiary must have been agreed upon before it was noted in the written application.

The policy refers to an application, but does not designate it as a written application. Evidence as to what was said when the insurance was taken, supplies that part of the contract upon which the policy is silent; it does not contradict or alter the contract as set forth in the policy. The exclusion of the written application from the case, does not render evidence incompetent which would have been competent if the parties had omitted the written application.

The act of 1881 was evidently passed in the interest of the insured. "The act affords protection to persons who insure their lives and property, and can injure no company conducted upon honest business principles": New Era Life Ass'n v. Musser, 120 Pa. 390. In a suit upon a policy, the beneficiary was often defeated by the production of a written application which contained statements for which the insured was not responsible, or which would have been corrected in the lifetime of the insured, had his attention been called to them by attaching a copy of the application to his policy. The defendant company continued to receive the premiums from Mrs. Cruikshank, and if the defence now interposed is sustained, the result is a hardship little short of fraud for the company...