Sgro v. Pa. Burial Co., Inc.
| Decision Date | 16 March 1934 |
| Docket Number | 433-1933 |
| Citation | 171 A. 425,113 Pa.Super. 20 |
| Parties | Sgro v. Pa. Burial Co., Inc., Appellant |
| Court | Pennsylvania Superior Court |
Argued December 14, 1933
Appeal by defendant from judgment of M. C., Philadelphia County-1933, No. 738, in the case of Giuseppe Sgro v Pennsylvania Burial Company, Inc., successor to Italian Burial Casket Company.
Rule for judgment for want of a sufficient affidavit of defense in action of assumpsit on contract of insurance. Before Lewis J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the entry of judgment.
Affirmed.
Carlos Berguido, Jr., and with him Brown & Williams, for appellant. -- Where an illegal contract is cancelled and a new contract founded upon a new and independent consideration is entered into between the parties, the new contract may be enforced, even though it be remotely connected with the old contract: Hipple v. Rice, 28 Pa. 406; Missouri Fidelity & Casualty Co. v. Art Metal Const. Co., 242 F. 630; Lukens v. The Oliver H. Bair Co., 104 Pa. Superior, 280.
Herman D. Friedman, for appellees, cited: Wright v. Hanna, 210 Pa. 349.
Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.
This appeal is by the defendant from a summary judgment entered by the court below, in the amount of $ 100, for want of a sufficient affidavit of defense to plaintiff's action, by which he sought to recover the aggregate amount of weekly payments made by him to the defendant company, under a certain contract for funeral expenses and burial equipment.
In the recent cases of Bedell v. Oliver H. Bair Co., Inc., 104 Pa.Super. 146, 158 A. 651; Lukens v. The Oliver H. Bair Co. ibid., 280, ibid. 654; and Ruto v. Italian Burial Casket Co. ibid., 288, ibid. 657, this court considered at length and disposed of questions which control the disposition of this appeal and a repetition of what was there said is unnecessary.
This case is ruled by Bedell v. Oliver H. Bair Co., Inc., supra, and not by Lukens v. The Oliver H. Bair Co., supra.
The contract here involved is identical in form with the one considered by this court in the third case above mentioned, Ruto v. Italian Burial Casket Co., and the defendant in that case is the present appellant. In the case just cited we held that contracts in the form of the one now at bar, even if not ultra vires (in view of the more extensive corporate powers of appellant), are contracts of insurance and cannot be lawfully issued by appellant because it has not complied with the insurance laws of this state.
In the Bedell case, and for the reasons there stated at length, the conclusion was reached that the holder of such a contract may at any time discontinue making the payments therein provided for and recover all payments made thereunder, with interest from the date of demand.
The contract now in question is identified as No. 1823; it was executed August 27, 1923, and provided for the payment of twenty cents per week until $ 200 had been paid. In the event of the death of the plaintiff at any time after the first payment, appellant agreed to inter his remains in the manner therein specified; it was further provided that the contract should become null and void on failure to make any of the payments when due and that all payments theretofore made should be forfeited to appellant.
It is admitted in the affidavit that plaintiff made the payments regularly up to November 7, 1932, in the aggregate amount of $ 96.20, and that plaintiff then made demand upon appellant for the return to him of the amount so paid. The defense sought to be interposed at this point consists of averments to the effect that a new contract was then entered into between plaintiff and appellant which had the effect of bringing the case at bar under the decision of this court in the Lukens case. The contract under consideration in the Luken's case contained a provision that, if the person holding it should so request, the company would issue a "credit receipt" for the full amount of money paid in under the contract, which "credit receipt" obligated the company to care for and inter the remains of the holder and allow a credit to the extent of the amount of the receipt "for and on account of any funeral furnished and conducted" by the company for the holder of the receipt. In that case we held that the issuing and...
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