Shaak v. Meily , 136 Pa. 161 ( 1890 )

Opinion,

Mr. Chief Justice Paxson :

This suit was brought in the court below by John W. Shaak, administrator of the estate of George Fisher, deceased, to recover the amount of a life policy issued by the U. B. Aid Society to the said Fisher in the sum of $3,000. The facts as alleged by the defendant and found by the jury are, that Fisher in his application directed the policy to be issued to E. Z. Kehler, as the beneficiary, and that it was so issued; that Kehler was a creditor of Fisher in about the sum of $100, and had therefore an insurable interest; that Kehler paid the premiums for some time and then assigned the policy to Meily, the defendant, who was a creditor of Kehler; that Meily, and also the firm to which he belonged, Reinoehl & Meily, were also creditors of Fisher, the assured; and that Fisher assented orally to the transfer from Kehler to Meily. Upon the, death of Fisher the aid society paid the money over to Meily, and this suit was brought by the administrator of Fisher to recover it from Meily. The principal grounds upon which this claim was rested were, (a) that as to Kehler it was a gambling policy; (b) that no title passed from Kehler to Meily, because the latter, while the holder of the policy, had made an assignment for the benefit of his creditors, and that by reason thereof the policy, as a chose in action, passed to his assignee; and (c) that, in any event, the policy being a mere gambling transaction, Fisher had no such interest or control over it as enabled him to consent to its transfer by Kehler to Meily. The two last propositions may be dismissed with the remark that each of them is a two-edged sword; for, if the policy passed by Kehler’s assignment to his creditors, what interest or right has the administrator of Fisher in it ? And, if Fisher had no such interest in it as to give him the right to assent to its transfer to Meily, it is equally difficult to see the interest of his administrator. The first proposition has been negatived by the verdict, so that, unless some error is apparent upon the trial, the judgment must stand.

A careful examination of the charge and the answers to points fails to disclose any substantial error in that part of the case. The fifth assignment alleges that the learned court erred in permitting, against objection, the witness Reinoehl to testify as to conversations with Fisher occurring during his lifetime. The ground of the objection was that this was a suit by the administrator of Fisher, and that the witness was interested. As I understand the case, when Meily received the assignment of the policy he assumed the debt due by Fisher to his firm, and it was charged up against him on the books thereof. The witness was examined on his voir dire as to his liability to pay any portion of the money back to Meily in case a judgment was recovered against him in this suit, and he flatly denied any such engagement or liability. I am unable to see how the witness can be affected by the verdict in this case. He expressly stated, “Now it is optional with me whether to assume that debt or not.” When the witness Reinoehl was called, Ms competency was objected to by the plaintiff, who endeavored to prove his interest aliunde and for this purpose called E. Z. Kehler to the stand. This witness did not prove anything, however. The court then called the witness Reinoehl and examined him on his voir dire, with the result as before stated. It will be noticed that the only objection to the witness was to his competency. No exception appears to have been taken to the manner in which the competency of the witness was established. The eleventh assignment alleges that the court erred in not striking out the testimony of several witnesses, as well as a large portion of the documentary evidence; indeed, pretty much all that was of value to the defendant’s case. The learned judge did not see his way clear to do this, in which we think he was right.

Judgment affirmed.