Corcoran ex rel. Dill v. Mutual Life Insurance

.'Opinion by

Mb! Justice Williams,

This case was here one year ago, and is reported in 179 Pa. 132. It was sent back for a new trial, which has now been had and is again in tins Court on appeal. The questions raised and decided when it was here in 1896 are not again presented, as the learned judge appears to have followed the rules laid down by us at that time. Another question is raised however, and upon substantially the same facts that were presented on the former trial. The defendant company issued a policy upon the life of James Corcoran in 1877. It was payable to his wife Frances Corcoran, if living at his decease. He died in 1894. She survived him and not long after his death made the requisite proofs, alleged loss of the policy to excuse her failure to produce it, and received payment of the insurance money from the company. In February, 1895, Philson brought this suit as the assignee and owner of the policy. On the trial he presented the assignment of the policy by James and Frances Corcoran to W. H. Dill as collateral security for the payment of a note for $2500 which Dill had indorsed for Corcoran, and which had been discounted by Philson’s bank. This note was not paid at maturity, and the indorser assigned the policy over to Philson ■as security for the note so held by him. The company replied •to this, showing that it had paid the insurance money to the payee named in the policy, and without notice of Philson’s claim. It also set up and relied on the stipulation in the policy that provided “ This company will not take notice of any assignment of this policy until a duplicate or certified copy thereof shall be delivered to the company at its'principal office,” and proved by its clerks and bookkeepers that no such duplicate or certified copy had ever been furnished to the company. Philson did not allege that he had filed a copy of the assignment with the company, but set up a waiver of a strict compliance with the rule and an acceptance of the production and exhibition of the assignment in the office of Mr. Lambert, the general agent of the company, in Philadelphia, as a sufficient notice of its existence and character. In support of this proposition he proved that the secretary of the company directed Him by letter to communicate with Mr. Lambert in regard to his alleged assignment and notice thereof to the company, and that soon after, viz :• April, 1892, he sent the policy and the assignment of Corcoran and wife to Dill and of Dill to himself to the office of Mr. Lambert by a messenger for examination. He further proved that the papers were presented to a clerk in the office in the absence of Mr. Lambert, who took and examined them, walked a short distance to a book in which he appeared to make entries, and then returned to the messenger and handed the papers back to him. From this testimony he asked the jury to find that the filing of a copy had been waived and that the company undertook to note the assignment for its own protection and return the original papers to the owner. The present contention of the appellant is that the effect of this evidence was for the court, and that the jury should have been given a binding instruction as to its sufficiency or insufficiency to support a finding that strict compliance with the conditions in the policy had been waived. The rule that separates the province of the court from that of the jury is pretty well defined. If the evidence is direct, certain, presenting no question of credibility, and leaving no sufficient ground for inconsistent inferences of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses, and if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up the doubts, settle questions of cred ibility, draw the correct inferences and give final shape to the findings of fact. In this case the construction of the letters and other writings was for the court. They were not ambiguous in any particular. But just what was done in the office of Mr. Lambert when Phils on’s messenger presented the policy and assignments for examination, what impression was made on the mind of the messenger and of Philson by the conduct of the clerk, and what was the purpose of the clerk representing Mr. Lambert at the time, and what he did, are not questions of law, but upon the rule already stated are questions of fact upon which the jury should pass. This is the controlling question in this case, as it now stands, and we think the learned judge decided correctly when he submitted all the evidence relating to this subject to the jury.

We see no error in the answer to the plaintiff’s first point. If Dill, the indorser, transferred the assignment of the policy to Philson to secure the same debt to secure which it had been assigned to him, we think the title vested in Philson so far as that was necessary to enable him to hold the policy as collateral security for the debt and to sustain this action. The fourth and fifth assignments are also overruled. The learned judge would not have been right if he had instructed the jury that the renewal note executed on June 21,1891, was an “ extinguishment of the note made at the time of the assignment, and thereby destroyed the assignment so that the policy reverted to Frances Corcoran without formal reassignment.” The assignment, if made to secure the debt, is being used for the purpose intended by the assignors, and in a proper way.

The answer to the defendant’s seventh point is unobjectionable. • Whether Philson was misled or not by what transpired in Mr. Lambert’s office was a question of fact in the determination of which the letter written by Philson to Corcoran in June, 1892, was to be considered, and to be given such weight as the jury thought it entitled to.

Upon a consideration of all the assignments of error the judgment is affirmed.