Pister v. Keystone Mutual Benefit Ass'n

Evidence of court and jury — Misleading charge. Where the language of the charge was contradictory and misleading the ease will be sent back for another trial. Insurance — Forfeiture by reason of default in paying assessments. Where a forfeiture has inured under the terms of a policy of insurance by reason of nonpayment of an assessment due and demanded, the facts that the insured was also an employee of the defendant at the time of his death and that, at the time of the default, a fraction of a month had elapsed at the end of which a monthly salary would be due, do not warrant a submission to the jury of the question whether the defendant was at the time of the default indebted to plaintiff under instructions that if it be so found the plaintiff would be entitled to recover. Insurance — Master and servant — Appropriation of wages. If a sum of money be due to an employee of an insurance company as wages the company has no duty to apply such wages to the payment of an assessment due and demanded by and from such employee who was also insured in the company. There could be no duty unless there was a right to so appropriate.

Appeal, No. 29, Nov. T., 1896, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March Term, 1895, No. 850, on verdict for plaintiff. Assumpsit sur policy of insurance on life of plaintiff’s husband. Before Gordon, J. It appeared from the record and evidence that this was an action of assumpsit in the court below by Letitia Pister upon a policy of life insurance, No. 6109, issued by the appellant on August 6, 1893, insuring the life of Samuel H. Pister in the sum of $500 and promising to pay that amount to his wife, Letitia Pister within ninety days after notice and proof of death of the assured. Samuel H. Pister died on the 12th day of April, 1894, after a brief illness of but a few hours. The company had due notice and proof of Ms death. It was provided in the policy as follows: “ If any annual dues or mortality assessments on this policy shall not be paid when due, the consideration of this contract shall be held and deemed to have failed and this policy shall be null and void; and the only evidence of payment shall be the receipt of the Association, signed by the President or Secretary.” At the time the policy was issued and from that time to the day of Ms death, Samuel H. Pister was in the employ of the company as soliciting agent under a commission from the company, No. 578. For the month of February, 1894, he was to receive a salary of $16.00 per month; for the month of March $20.00 per month and for the month of April a like salary. On the 31st day of March, 1894, he settled his account with the company through T. H. Boyer, who was a general agent of the company in control of a large number of agents and who employed them for the company and who employed Mr. Pister. At this time he paid Mr. Pister $20.00, the full amount of his salary for the month of March. At the time of settlement, the company had levied a mortality assessment upon all its members amounting to $1.00, and at the time of the settlement Boyer offered to deduct the mortality assessment of $1.00 from Pister’s monthly salary,to which Pister objected, as he had rent to pay. According to the by-laws of the company and the notice served in pursuance thereof, Pister had until the 2d day of April in which to pay the mortality assessment. At that time he had earned $1.33&. He died on the 12th day of April at which time he had earned $8.00 and the company was then indebted to him in that amount. The company defended on the ground that he had not paid the mortality assessment due on the 2d day of April, the appellee contending that there was sufficient in the bands of the company to more than pay the mortality assessment which, the company had the right to appropriate for that purpose. Upon this narrow issue the case was submitted to the jury by the learned trial judge, resulting in a verdict for the plaintiff for the face of the policy and interest, amounting: to 1547.50. The court charged the jury, inter alia, as follows: It appears — and that is the only element in this case which enables the cause to go to the jury at all — that this plaintiff’s husband was also an agent or employee of the company, at a fixed salary of $20.00 a month. It appears, also, that he received, in March, a notice of an assessment for two deaths, by which he became liable, within thirty days, to pay $1.00 to the company; and it is admitted that he did not pay that sum of money. If he was a person unemployed and not related to the company, that would end this case. He would have been in undoubted default, as, under the terms of his policy, the failure to pay the assessments when they became due works a forfeiture. But, as I have said, he was an employee, and when he died, on the 12th of April, there was due to him as wages a sum of money, $8.00, or $9.00, as the case may be; it is not very important except that it was more than the amount of the assessment, $1.00. [When the plaintiff closed her case she showed that at the time this assessment was due there was due, also, to this insured man, at least a dollar, and, when he died, much more than that; and I permit this case to go to you on this single proposition, and this single proposition alone, which is, whether he had or not, at any time up to his death, refused to pay that assessment upon demand. If he had not, if the money was not specifically demanded and was not specifically refused, then I charge you as follows : That you may find that if there was a dollar due him by the company on the 2d day of April, that he appropriated that sum towards the payment of the assessment due, and hence he was not in arrear, and there was no default. I am obliged to send the cause to you upon that narrow point for this reason, that when the plaintiff’s case closed there was simply this state of facts exhibited: That an assessment was due by him on the 2d of April; that on the 31st of March the company paid him all it owed him, $20.00, and though at that time he probably might have paid a dollar, up to that point there was no evidence that there had been a demand on himj and he died with a still greater sum due him than the dollar.] [2] The defendant company contends, first, that when they paid him on the 81st of March the $20.00, he was asked to pay the dollar due by him for the assessment, and that he refused, and he said he had better use for his money. If, gentlemen of the jury, you find that to be so, then I charge you that you cannot find from the mere fact that the entire sum of money was paid that there was any continuance of the relation of debtor and creditor between him and the company by which accruing wages might afterward be equitably set off against the assessment which he might owe. It is in further evidence that on the last day, the 2d of April, when this money ought to have been paid, he again was asked to pay it, and again refused. If you find that to be so, and believe the testimony of the defendant on that point, I charge you that there was a default on this policy and a forfeiture, and it would make no difference then when he died what was owing to him, unless he had been reinstated according to the regulations of tbe company. Gentlemen of the jury, I do not know whether I have made that clear to you or not. Let me repeat, however, a word or two with reference to the relations of these parties, and then I will give the case to you for your consideration. I charge you that there is no evidence in this case sufficient for you to find that this agent waived the payment or extended the time for the payment, even if he had authority to do it, of which there is no evidence, — all the evidence of the defendant being that he had no authority upon the subject, and that the contract itself does not give him such an authority. Moreover, the testimony of this plaintiff and her daughter is not sufficient to show, even if he had the authority, that he extended the time, because the utmost that they testified to is that he expressed regret that this dead man had not paid his assessment when it was due, and said if it had been paid before 12 o’clock the policy would have been good. None of those conversations, none of that language, are sufficient to show a waiver as to time or an extension of time. [Hence, the case must turn 'upon the single point that I have given you. This company and this man being in the position of master and servant, employer and employee, if there was no demand made upon him other than the ordinary notice, and there were accounts between him and the company, and, by the condition of those accounts at the time this money became due, the company was indebted to him in the amount of the assessment, then I charge you that that may be. equitably set off against the assessment due, and hence that there was no default.] [B] But, if you believe the defendant’s witnesses, that they asked him first to allow them to take the dollar out of his March wages, and he refused, and afterwards, that on the 2d of April, they again demanded the dollar and he again refused, by that refusal on that day there was a forfeiture of the policy and there could be no recovery upon it, unless there was a reinstatement under the by-laws and regulations of the company, which, confessedly, there was not. [Therefore, the whole case really turns upon the credibility of the two witnesses for the defendant, Mr. Boyer and Mr. Lamont, and all questions of credibility are for the jury, and not for the court. You must say whether you believe their statements or not. If you do, then the plaintiff cannot recover. If you discredit it and believe that no demand was made upon him for the money, and there was no refusal on the 2d of April, then the plaintiff is entitled to your verdict.] [4] I have had some propositions handed to me by the plaintiff, which I am asked to specifically charge you upon, and the first is as follows: 1. If the jury find from the evidence that the time for paying the mortality assessment of $1.00 mentioned in the defend- . ant’s notice to the insured, dated March 1, 1894, had been extended, and the insured died before the expiration of such extension, the plaintiff is entitled to recover. Answei•: I refuse that proposition. There is no evidence that there was an extension of time. 2. If the jury find from the evidence that the defendant was indebted to the insured to an amount equal to or greater than the mortality assessment of $1.00 mentioned in the defendant’s notice to the insured, dated March 1, 1894, at the expiration of said notice, and remained so indebted to the death of the insured, the plaintiff is entitled to recover. Answer: That is so; if he had not refused to pay on the 2d of April, when the dollar was demanded; and remember, gentlemen of the jury, that on the 2d day of April — this demand was made on that day — there Avas not $1.00 due to this insured man, because he was paid all of his wages for March. The 1st day of April only had elapsed, and if the demand Avas made on the second day, there was not at that time due to him the sum of $1.00. [5] 3. The defendant having failed to indorse upon the policy in suit a copy of its entire by-laAvs and articles of association, such by-laws and articles, or extracts therefrom so indorsed, are not evidence, and therefore there is nothing in the case from which it can be determined whether the mortality assessment of $1.00 mentioned in defendant’s notice to the insured, dated March 1, 1894, is lawful or not, and the plaintiff is entitled to recover. Ansiver: I refuse to só instruct you. 4. Upon the whole evidence the jury should find for the plaintiff. Answer: I refuse that proposition, also. I am asked by the defendant to charge you that under all the evidence the verdict must be for the defendant. Answer: I refuse to so charge you. [1] Counsel for the defendant excepts to the answer of the court to the plaintiff’s second point, and to the refusal of the defendant’s point, and to the charge of the court in general on matters of law. Counsel for the plaintiff excepts generally to the charge of the court on matters of law. Verdict for plaintiff, $547.50. Defendant appealed. Errors assigned were, (1) refusal of binding instructions for defendant; (2-4) portions of the judge’s charge, reciting same; (5) answer to plaintiff’s second point, reciting same; (6) charge of the court as a whole was inconsistent and inadequate; (7) in admitting the folloAving testimony of plaintiff. “Q. You heard Mr. Lamont and your husband have a conversation? Just state it to the jury.” Objection by Mr. Erdman. Objection overruled. Exception for defendant. “ A. In the house they spoke about it. My husband said he Avould pay it on Saturday. From what I understood, I thought it would be open for him until that time. Of course he died that Thursday night, between 11 and 12 o’clock.” (8) In admitting the following testimony of Margaret Davidson, offered by plaintiff, relating to a conversation between plaintiff and Lamont, collecting agent of defendant. “ Q. What was that conversation ? ” Objection by Mr. Erdman. Objection overruled. Exception for defendant. “ Be good enough to detail the conversation. A. He came in the morning after the death, and said it was too bad, but that my mother would not get anything. He said, ‘ Had it been paid at 12 o’clock the night before, or before 12, he would have got his money,’ but he said, as it was, he wouldn’t get anything.”