Kerns v. Prudential Insurance , 1899 Pa. Super. LEXIS 127 ( 1899 )

Opinion by

Rice, P. J.,

This was an action of assumpsit to recover the premiums the plaintiff had paid on two policies of insurance held by her on the lives of her children. She claimed that she had regularly paid all the weekly dues or premiums until May, 1897; that the company through its agents, insisted, contrary to the fact that certain of these payments, amounting to thirty cents, had been made and properly applied on account of two other policies, and not on the policies in question, and therefore, this sum was still owed; that unless she paid this sum in addition to the dues then accruing, the policies would be lapsed; that she refused to pay this additional sum, but tendered the proper dues which the collecting agent refused, and thereupon declared that the policies were lapsed; that she renewed the tender to the superintendent, who refused to accept it; and that from that time until she brought suit, four or five months afterwards, no agent called for dues, nor was any communication from the company received.

The foregoing, without prolix detail, was her claim. It is not our province to declare what the truth is with, regard to the disputed allegations; it is enough to say that there was sufficient evidence to warrant a jury in finding all the facts alleged, including the fact that the company regarded and treated the policies as lapsed or forfeited. These facts fairly bring the case within the ruling of our Supreme Court in American Life Insurance Co. v. McAden, 109 Pa. 399. After showing, that when one party to a contract refuses without right to perform his part, the other party may elect either to sue on the contract to recover damages for the breach, or to rescind the contract and sue in assumpsit to recover back the money paid under it, Mr. Justice Clark uses language which aptly fits the present case:

“ The policy, when made, was admittedly valid; the premiums which were paid were voluntarily paid upon that policy, the rislc had been running for ten years ; the obligations of the contract were long since in force, on both, sides, and it is clear that the plaintiffs could not of their own mere motion rescind it, so as to recover back the premiums paid; but if after receiving these premiums, the company without right refuse to receive further premiums as they mature, deny the obligation, and declare the contract at an end, the plaintiff, we think, may take the defendants at their word, treat the contract as rescinded, and recover back the premiums paid, as so much money had and received for their use. . Rescission or avoidance, properly so-called, annihilates the contract, and puts the parties in the same position as if it had never existed: and notice that a party will not perform his contract has the same effect as a breach: Ballou v. Billings, 136 Mass. 307. It is of no consequence that the payment of the premiums was voluntary, upon a valid obligation of the plaintiff to discharge a debt which the plaintiff owed, and which the defendant had a right'to receive; the action is not founded in any fraud or failure in the original contract, but on a rescission of it through the subsequent refusal of the defendant to perform it.”

The same principle was recognized and applied in our own case of Bresnahan to the use of McNulty v. The Prudential Insurance Co., 7 Pa. Superior Ct. 1. The authority of the decision in McAden v. Ins. Co. was recognized as late as 1896 in Marshall v. Fire Insurance Co., 176 Pa. 628, and we are not aware that it has ever been questioned. The rule laid down in Com. v. American Life Ins. Co., 162 Pa. 586, for the distribution of the assets of an insolvent insurance company does not apply to the case of a voluntary and wrongful forfeiture of a policy and refusal to receive further premiums where the insured elects to rescind. There is not an intimation in the last cited case modifying or in any way questioning the doctrine of McAden v. American Life Insurance Co. . It is not necessary to comment on the cases from other states cited by the defendant’s counsel. Some of them are plainly distinguishable from the present, and so far as any of them are in conflict with the decision of our Supreme Court, the latter must control. The sum of the matter is this: If the reasons assigned by the defendant’s agent and superintendent were valid and true, the refusal to receive the dues tendered by the plaintiff was right; if the contracts were in fact, forfeited and void, there was no contract remaining to rescind, and therefore no right to recover anything. But if the plaintiff’s allegations as to the amount previously paid on the contracts were true, the refusal to accept her tender was wrongful; she had a right to assume from the acts and declarations alluded to at the outset of this opinion, that the company regarded the policies as lapsed or forfeited; and therefore she had a right to rescind and recover in an action for money had and received the whole amount paid. It follows that the court committed no error in receiving the evidence as to these payments or in refusing to strike it out. The eighth assignment of error is overruled.

The other assignments are based exclusively on the charge of the court; but it is contended by the plaintiff’s counsel, and we think' correctly, that the charge is not properly on the record, and is not before us for review. What is printed and attached to the record as the charge is on its face incomplete in many passages, and opposite one of them, which bears materially on some of the assigned errors is the memorandum made by the trial judge: “ This is not correctly reported.” The only certificate of the judge at the end is as follows : “ This was written out at defendant’s request, but it is not a complete manuscript.” It will be noticed that there is no certificate even that it is correct as far as it goes. There have been many recent decisions as to the procedure for bringing the charge and answers to points on the record and making them the subject of assignments of error. The latest of these is Curtis v. Winston, 186 Pa. 492. The precise question here is to the authentication of the charge, not as to what must be done before verdict. Upon this question there is no room for discussion. When the judge does not sign a bill of exceptions as to the charge and answers to points, it must appear in some way affirmatively that the charge as reported by the stenographer is approved by the judge as correct. Without that the filing by the stenographer is a nullity: Connell v. O’Neil, 154 Pa. 582; Hill v. Egan, 160 Pa. 119; Com. v. Arnold, 161 Pa. 320; Smith v. Times Pub. Co., 178 Pa. 481; Harris v. Traction Co., 180 Pa. 184; Com. v. Fitzpatrick, 1 Pa. Superior Ct. 518; Heyer v. Piano Co., 6 Pa. Superior Ct. 504; Stout v. Quinn, 9 Pa. Superior Ct. 179. We must therefore dismiss these assignments. We have, however, considered the really important question in the case in disposing of the eighth assignment.

The judgment is affirmed.