DeCoursey v. Johnston

Opinion, Mr. Justice Sterrett : This feigned issue was framed for the purpose of determining [331] whether the plaintiff, Samuel G. DeCoursey, was entitled to all or any part of the $5,000 paid into court by the Connecticut Mutual Life Insurance Company, as the amount admitted to be due under its policy of insurance on the life of defendant’s husband, John Johnston, then deceased. By the terms of the policy, the sum named was payable upon the death of the insured “ to his wife, and, should she not then be living, to her children.” Johnston died in November, 1884; and, the insurance money being claimed by his widow as beneficiary named in the policy, and also by Samuel G. DeCoursey as assignee of the policy, the company paid the money into court, and the issue was ordered to determine the rights of the respective claimants. To maintain the issue on his part, the plaintiff gave in evidence a note, of which the following is a copy: “$8,200. Philadelphia, Oct. 17, 1874. “ One year after date, I promise to pay to the order of James W. Boyd thirty-two hundred dollars, without defalcation, for value received, having deposited herewith.....an assignment from me, my wife and children, of policy No. 45,459, of the Connecticut Mutual Life Insurance Company of Hartford, insuring $5,000 on my life in favor of my wife and children, all of which I hereby authorize the holder of this note, upon the non-performance of this promise at maturity, to sell either at the broker’s board, or at public or private sale, without demanding payment of this note or the debt due thereon, and without further notice, and apply proceeds, or so much thereof as may be necessary, to the payment of this note, and all necessary expenses and charges, holding myself responsible for any deficiency. And I hereby further authorize the said holder, at any sale of said securities, to buy the same himself, with the same right as a stranger. John Johnston.” Accompanying this note was an absolute assignment of the policy by Johnston, and his wife and her children, to Boyd, the payee of the note, coupled with an irrevocable power of attorney to collect the insurance money when due,- etc. In November of the same year the note was transferred to plaintiff in the issue by Boyd, the payee, who at the same time, for value received, assigned to said plaintiff the policy of insurance. On behalf of the plaintiff, evidence was also introduced to show, [332] inter alia, that about the time ■ the note matured, or shortly thereafter, the maker failed, and made an assignment for the benefit of his creditors, among whom were Boyd and DeCoursey, both of whom proved their respective claims against the assigned estate, and received their dividends thereon. The verdict, in favor of the plaintiff, was “ that the property in the fund in question is in the plaintiff to the amount of $5,161.20; ” and judgment was entered thereon. That sum was the amount of the note, with interest, less the credits proved by the testimony of the plaintiff, to which was added, by direction of the court, a counsel fee of $150, making in all $5,161.20. The.subject of complaint in the first to the fourth specifications is the refusal of the court to permit the defendant to testify to matters that occurred in the lifetime of Mr. Boyd, to whom she assigned the policy. She proposed to prove by her own testimony that he was merely the agent of plaintiff in procuring the assignment, and also that she executed it under duress by her husband. Before Mrs. Johnston was offered as a witness, the note, assignments of the policy, etc., had been given in evidence. From these and other testimony it appeared that the policy in question was assigned by herself and others to Boyd absolutely, and that more than a month afterwards he assigned it to the plaintiff. There was nothing on the face of the papers to indicate that Boyd, who was then dead, was merely the agent of plaintiff in procuring the assignment. On the contrary, he appeared to be a principal in the transaction, and there was nothing to rebut that legal inference. “ When any party to a thing or contract in action is dead, .... and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject-matter in controversy,” the act of 1887 excludes a party from testifying “ to any matter occurring before the death of said party.” Having assigned her policy to Boyd, who assigned the same to plaintiff in this issue, Mrs. Johnston was incompetent to prove, any matter occurring before the death of her assignee, and was therefore rightly excluded. Amer. Life Ins. T. Co. v. Shultz, 82 Pa. 46, cited and relied on by the defendant, is not applicable to the facts of this case. In that case, the deceased person, Mr. Geiger, was not a party to the contract, nor to the proceeding. He was merely the agent of the insurance company. [333] The fourth specification is misleading in that it misrepresents the objection to the question and the ruling of the court thereon. The bill of exceptions, p. 17, shows that the objection was restricted to conversation in the lifetime of Mr. Boyd, and the ruling of the court was “sustained, unless conversation occurred since Boyd’s death.” A proper observance of the Rules of Court in regard to assignments of error, would relieve us from the necessity of noticing such misleading inaccuracies. There was no error in rejecting the offer referred to in the fifth specification. The witness whose “ assertion ” the defendant proposed to contradict was called by herself, and made the “ assertion ” in his examination in chief as well as on cross-examination. Moreover, she was incompetent, as we have seen, to prove anything that occurred in the lifetime of Mr. Boyd. The “assertion” that defendant proposed to contradict evidently related to what must have occurred anterior to the death of Mr. Boyd. With the exception of what the learned judge said as to “ a reasonable counsel fee,” there was no error in the instruction referred to in the sixth specification. We find nothing in the evidence to warrant the instruction complained of in the seventh specification. It is true the contract of hypothecation provides for the public or private sale of the insurance policy, etc., pledged as collateral, and the application of the proceeds “ to payment of this note, and all necessary expenses and charges but the power of sale thus given was not exercised, and hence no such expenses and charges as were contemplated by the parties were incurred. Moreover, counsel fees are allowable, in this state, to the attorney of the opposite party, only when expressly stipulated for. The jury doubtless obeyed the instructions of the court, and included the $150 counsel fee in their verdict. The error may be corrected by deducting that amount as of the date of the verdict, and thus making the correct sum, $5,011.20. With that correction, The judgment is affirmed.