McHale v. McDonnell , 38 W.N.C. 345 ( 1896 )

Opinion by

Mr. Justice McCollum,

The contention in this case relates to the ownership of the proceeds of a policy of insurance on the life of Frank McDonnell. After his death in January, 1894, Bridget McDonnell, liis widow and the administratrix of his estate, claimed tire money due on the policy, and her brother, Thomas McHale claimed it. The insurance company conceding its liability paid the money into court, and this issue was framed for the purpose of determining to whom it belonged. The plaintiff in the issue based his claim to the money on the assignment of the policy to him by the insured on the 22d of January, 1877. This assignment embraced a provision which clearly showed that the assignee would not be entitled to receive under it, for himself, more than |500. As this provision appeared to have been erased, it became important to ascertain whether 'the erasure was made before the assignment was executed by the assured and witnessed by the attorney who drew it, or after the execution and delivery of it. The burden of showing that the erasure was made before the execution of the assignment was upon the plaintiff, and the witness relied on to show that it was so made was his brother, James McHale. He testified distinctly that he was present when the assignment was read to the parties, and. that the erasure was made before it was signed. It seems from his testimony that the erasure was made to overcome the objection of his brother Thomas to the provision in the assignment which limited the latter’s interest in the policy to $500. But his statement of the objection was not very clear. On his direct examination he said in substance that the assignment as read was not satisfactory to Thomas while in his cross-examination he said that the only fault found with it was that the amount was not correctly stated in it, and in his redirect examination he added that Thomas said “ he wanted the policy or nothing.” The witness did not testify nor the plaintiff claim on the trial that the agreement made by the parties in regard to the transfer of the policy was modified after the assignment of it was prepared and read to them. If under the agreement the plaintiff was to become the absolute owner of the policy it is difficult to account for the presence in the assignment of the limitation clause. If on the other hand it was agreed that the policy should be assigned as security for a loan or debt, the limitation was proper, provided the amount mentioned'in it was sufficient to accomplish the purpose of the transfer. It was not to be presumed that the assured caused to be written in the assignment a provision in plain violation of the agreement, nor that the plaintiff objected to the presence there of a provision in exact accord with it. Satisfactory proof that the limitation in the assignment was in violation of the agreement would have strengthened the plaintiff’s contention in regard to the erasure, and like proof that the limitation corresponded with the agreement would have weakened it. But as the plaintiff was not a competent witness to matters occurring between him and the assured, and as three of the five persons who were present when the assignment was made were dead, it is probable that the parties furnished all the evidence on this point they were able to produce. It seems to us however that there was an item of evidence which was entitled to more consideration, in connection with the question of the erasure, than it received, and in regard to which the charge was inadequate and misleading. We refer to the second assignment which appears from its date to have been made on the 6th of April, 1878. It was found in the plaintiff’s possession, attached to the policy, and proved to be genuine. Why was this assignment made to and held by the plaintiff if the prior assignment made him the absolute owner of the policy? It certainly was not in accord with the plaintiff’s contention respecting the time of the erasure nor absolutely inconsistent with the presence of the limitation clause in the first assignment when the second was made. If there was no erasure the second assignment might be regarded as a qualification of the limitation in the first, and the plaintiff, holding both assignments, would be entitled to receive from the proceeds of the policy the amount of the assured’s liability to him. In other words he would receive and be restricted to the amount the assignmencs were intended to secure, whether that amount-was more or less than the sum mentioned in the first assignment. That sum may have been increased by accumulations of interest, and other loans, or reduced by payments, made on account of it.

It is worthy of mention, in this connection that while the assignment was drawn and witnessed by a competent and reliable lawyer he did not note thereon that the erasure was made before signing. Of course if the erasure was made after the assignment was executed and without the consent of the assured there can be no recovery upon or by virtue of it.

The special verdict, on its face, did not authorize the judgment entered upon it. It embraced material findings irreconcilable with each other. The inconsistency in the verdict appears in the answers to questions 1, (5) and (e). The answer to the first question clearly involved a finding that the assignment of January 22,1877, was made “ to secure a loan of $700,” while the answers to questions (b) and (e) constituted a finding that the policy was absolutely sold and assigned to the plaintiff in consideration of debts of the assured due to or assumed by the plaintiff and of money paid by him at that time. It is said that the inconsistency in the findings was attributable to a mistake in framing the first question, which it is alleged was intended to be limited to the single inquiry whether the assignment was genuine. But no such intention was apparent in the question, and if it existed as claimed the question should have been amended so as to conform to it. There was no warrant in the question for eliminating from it, in the general charge, the words, “ to secure a loan of $700.” The questions as written were sent out with thé jury, and, with the answers to them, constituted the verdict. The verdict must be construed upon the questions and answers which compose it. We think therefore that what the learned trial judge said in his charge in regard to the meaning of the first question cannot be allowed to affect the construction of the verdict rendered in this case.

We cannot sustain the 2d, 3d, and 8th, specifications. The rulings complained of in them were in exact accord with the decision of this court in Grant’s Admrs. v. Kline, 115 Pa. 618. In that case the policy was for $3,000 and the amount paid for or on account of it was $743. In this case the policy was for $2,000 and the amount claimed for it was $700. In this case there was no evidence showing what the assured’s expectancy of life was when the policy was issued or when it was assigned. There was nothing therefore in the disproportion between the amount of the policy and the alleged consideration for the assignment of it which would have warranted the court or jury in dényihg to the plaintiff a recovery in accordance with his contention. Grant’s Admrs. v. Kline was not overruled by Ulrich v. Reinoehl, 143 Pa. 238, or by Shaffer v. Spangler, 144 Pa. 223.

We discover no error in the instruction complained of in the 5th specification or in the ruling which is the subject of complaint in the 7th nor anything in either which requires discussion.

In accordance with the foregoing views we sustain 1st, 4th and 6th specifications, and overrule the 2d, 3d, 5th, 7th and 8th.

Judgment reversed and venire facias de novo awarded.