Corcoran v. Mutual Life Insurance , 179 Pa. 132 ( 1897 )

Opinion by

Mr. Justice Williams,

The policy sued on this case was issued by the defendant company upon the life of James Corcoran, and was payable to his wife Frances Corcoran if she survived him, otherwise to their children. The policy was obtained in 1877. James Corcoran died in January, 1894, leaving his wife and three children to survive him. Mrs. Corcoran made proof of her husband’s death, and claimed the amount due upon the policy as the payee named therein. She alleged that the policy had been mislaid or lost, and was required to make such proof of the fact as she was able, and to give a bond of indemnity to the company before the insurance money was paid to her. This she did, and on the 30th day of April, 1894, the money was paid to her. On the 25th day of February, 1895, nearly one year after the payment to Mrs. Corcoran, this action was brought, the plaintiff claiming title to the policy by virtue of an assignment by James and Frances Corcoran to W. H. Dill, made in October, 1890, as collateral security for an indebtedness and an assignment from Dill to himself on the 10th day of March, 1892, accompanied by an assignment of the indebtedness to secure which the assignment to Dill had been made. The policy stipulated among other things that the company would take no notice of any assignment until it bad been furnished with a duplicate, or a certified copy thereof, delivered to the company at its principal office. The defendant set up as a defense to the action the payment to Mrs. Corcoran, and the provision of the policy just referred to. To this the plaintiff replied that the company had waived the stipulation; and upon this question the case went to trial. As a proof of waiver the plaintiff gave in evidence his own letter to the secretary of the company, of March 29, 1892, referring to the assignment by the Corcorans to Dill, and by Dill to himself, and asking whether he should forward the policy to the company to have an approval of the transfer made or should send the assignments only. He followed this with the reply of the secretary dated on the 2d of April, 1892, saying that the company had no record of the transfers referred to, but if furnished with duplicate or certified copies of the assignments the company would file them as a notice of claim, and directing him to communicate with the general agent of the company, Mr. W. H. Lambert, of Philadelphia. He then proved that he sent the policy by a messenger to Mr. Lambert, who, in Mr. Lambert’s absence, showed the policy to a clerk, who after looking at it returned it without comment. No copies were in fact sent to either the New York or the Philadelphia office, and the proof was that no note or memorandum of the transfers could be found in either office. Several of the assignments of error raise the question, on whom did the duty of putting a construction on the letter of the secretary of the company of April 2, 1892, rest ? The learned judge appears to have submitted the question to the juiy. There was no ambiguity about the letter. It was plain and direct in its statements. Its construction was therefore for the court. It was a fact that might be taken into consideration by the jury that such a letter was written, and its legal effect as declared by the court was to be accepted by them and acted upon, but the construction of the letter and whether it was a waiver of the stipulation in the policy were questions for the court. Substantially the same thing must be said in regard to the third assignment. What the letter meant was again referred to the jury in the answer to the plaintiff’s first point. The court should have told them that the letter authorized the presentation of the copies at the Philadelphia office, and called their attention to the evidence showing what actually transpired when Gardell took the policy and assignments there and exhibited them. If the production of copies for filing was actually waived by the Philadelphia office then the plaintiff should recover. If it was not, then he must look to Mrs. Corcoran or the person who received the money that belonged to him. The fourth assignment must also be sustained. The policy was issued to Mrs. Corcoran. If, as appeared at the trial, there had been no such notice of a transfer given at the time the money was paid to her as the policy requires, the fact that she did not produce the policy, but alleged it to be lost, raised no presumption that the policy was held by another. If Mr. Philson then held a valid transfer of the policy to himself, he was advised by the terms of the policy that it was his duty to send copies of the assignments under which he claimed title to the company for filing, and that if this was not done no notice would be taken of information received in any other manner affecting the ownership of the policy. It was his duty to the company no less than to himself, to give notice in the manner provided for. If he did not do this, but allowed the proofs of death to be made and the money claimed and actually paid in good faith to the apparent owner, he is in no position to invoke a presumption such- as was held to exist in the answer to his second point. An additional remark should be made in regard to the thirteenth assignment of error. The complaint in this assignment is that the point to which it refers was not answered at all. The point asked the learned judge to instruct the jury that the letter from the secretary of the defendant company, of April 2, 1892, was not an agreement signed by the president or secretary of the company, waiving or changing any of the terms of the policy, or an instruction to the plaintiff that it would be sufficient notice if he exhibited the policy and assignments to Mr. W. H. Lambert at the Philadelphia office. This was but another mode of asking the court to expound the letter, and not to refer it to the jury for exposition. The court replied, “ I cannot affirm this point,” but added that the letter of the secretary must be taken as speaking not for himself as an individual, but for the company as its officer. This is entirely correct. The trouble is that it misses the question raised by the point, and disposes of another not in controversy. The plaintiff was insisting upon a waiver of the provision in the policy that required copies of assignments to be furnished to the company for filing by it as notice of claim by the assignee, and was asking the court to permit the jury to find proof of such waiver in the letter. The point in substance asked the court not to submit the construction of the letter to the jury but to instruct them in its meaning and effect. The answer, while amounting to a denial of the point, places that denial upon a ground not raised or involved in any phase of the controversy. We have already said that it was the duty of the court to say what the letter of the secretary meant, and whether it was or was not a waiver of any provision of the policy. If it was not, the evidence upon this question was narrowed down to what took place in Philadelphia. Unless the production of copies was in fact waived by W. H. Lambert or his clerks, in their interview with Gardell, we can see no ground for a recovery by the plaintiff against the company. What other remedy may be within his reach is a question not raised on this record.

The judgment is now reversed and a venire facias de novo awarded.