Pyrich v. Scranton Life Ins. Co.

• Decision Date: 12 July 1928
• Docket Number: 9-1928
• Citation: 94 Pa.Super. 159
• Parties: Pyrich v. Scranton Life Insurance Co., Appellant
• Court: Pennsylvania Superior Court

94 Pa.Super. 159

Pyrich v. Scranton Life Insurance Co., Appellant

No. 9-1928

Superior Court of Pennsylvania

July 12, 1928

Argued April 19, 1928.

Appeal by defendant from judgment of C. P., Cambria County, No 633-1926, in the case of Mary Pyrich v. Scranton Life Insurance Company.

Assumpsit on life insurance policy. Before McCann, J.

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

Verdict for plaintiff in the sum of $ 2,359.37, and judgment thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.

Walter E. Glass, and with him W. J. Fitzgerald, for appellant cited: Brown v. Penna. Casualty Company, 207 Pa. 609; Sydnor v. Metropolitan Life Insurance Company, 26 Pa.Super. 521; Murphy v. Prudential Insurance Company, 30 Pa.Super. 560.

Leroy J. Scanlan, and with him Edward J. Harkins, cited: Arthurholt v. Fire Insurance Company, 159 Pa. 1; Bush v. Hartford Fire Insurance Co., 222 Pa. 419; Susquehanna Mutual Fire Insurance Company v. Elkins, 124 Pa. 484; Singer Mfg. Co. v. Christian, 211 Pa. 534; Malchinsky v. Mutual Life Insurance Company of New York, 90 Pa.Super. 1.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

Cunningham, J.

Plaintiff, the beneficiary in a life insurance policy written by defendant under date of October 19, 1921, in the sum of $ 2,000, upon the life of Henry Hnylueh, who died August 4, 1923, has a verdict for $ 1,994.40, with interest, as the proceeds of said policy, less $ 10.68 credited by plaintiff as the unpaid balance of the annual premium for the current year. Defendant's motions for a new trial and for judgment n. o. v. were overruled by the court below, in banc, and we now have its appeal from the judgment entered upon the verdict.

By the second and third assignments of error it is charged that the learned trial judge erred in refusing defendant's point for binding instructions and in overruling its motion for judgment notwithstanding the verdict. These assignments raise the controlling question involved on this appeal. The defendant contended that it was not liable because the policy, under its terms, had lapsed on November 20, 1922, by reason of the non-payment of premiums, and had not been reinstated. Plaintiff contended that the policy was in force at the date of the death of the insured (August 4, 1923), because there had been paid by him, or on his behalf, to the agents of defendant in the city of Johnstown during the year beginning October 19, 1922, the sum of $ 90 on account of total premiums for that year, aggregating $ 105.68, which payments -- together with a payment of $ 5 in excess of the premiums due for the first year -- left a balance of $ 10.68 (credited on her claim) as the amount of premiums unpaid for the year beginning October 19, 1922, and that by these payments the policy was continued in force at least until September 8, 1923. Delivery of the policy by its agents and the receipt by it of all premiums due for the first year, ending October 19, 1922, was admitted by defendant, but it denied that it received any payments on account of premiums for the ensuing year and contended that plaintiff had not introduced any evidence from which a waiver by it of the provisions of the policy relative to the effect of the non-payment of premiums when due, or within the period of grace provided for, or of the provision that no agent may " waive any forfeiture," could legally be inferred. As plaintiff's pleadings and testimony showed that no payment on account of premiums for the year in question was made to defendant's agent until November 22, 1922, (which was beyond the period of grace), we are required to consider whether there was any evidence on behalf of plaintiff justifying the trial judge's refusal of defendant's request for binding instructions.

The application for the policy was made on October 17, 1921, and it was averred in the third paragraph of plaintiff's statement that on that date defendant had in the city of Johnstown " agents, who were duly authorized by defendant to solicit policies or contracts of insurance; to deliver to purchasers policies or contracts of insurance; to receive payment of premiums on such policies or contracts of insurance; and to receipt for same," and the names of the alleged agents were set out in the fourth paragraph of the statement. At the trial it was admitted by counsel for defendant that " the agents of the defendant company in the city of Johnstown were known as the Keystone General Insurance Agency, composed of Julius Fisher and Moses B Silverstone, and that Martin A. Haluska was an employe of the said Fisher and Silverstone, acting under them," and that these agents " were authorized to solicit policies of insurance, collect the first annual premium thereon, and .... that they had the authority to deliver contracts of insurance and the authority to receipt for the first annual premium." The insurance contract was called an " Endowment Bond" and provided for " the payment in advance of One Hundred One Dollars Sixty Cents for one year's insurance from the date [thereof]." It was further stipulated that the bond would be renewed " at the end of the first year as an insurance for the whole period of life from that date, subject to the payment in advance of One Hundred One Dollars Sixty Cents on the 19th day of October, 1922, and the payment of a like amount thereafter on every anniversary of this bond until twenty full years' premiums, including the first, shall have been paid hereon to the company, or until the prior death of the purchaser." On the back of the policy there was an endorsement to the effect that the premium might be paid " in semi-annual installments of Fifty-two and 84/100 dollars each, due on the 19th day of October and April in each and every year during the premium paying period of this contract." The contract contained the following provisions with respect to the payment of premiums and the effect of non-payment: " All premiums are payable in advance at the home office of the company, but will be accepted if paid to an agent authorized to receive the same in exchange for...