Opinion
November 30, 1928.
January 7, 1929.
Practice, C. P. — Affidavit of defense — Insurance — Life insurance — Suicide — Questions of law and fact.
1. In affidavit of defense cases requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury to decide the cause, under proper instructions from the court.
2. In an action on a policy of life insurance, where the question of suicide is raised by the affidavit of defense, and counsel for plaintiff states that, for the purpose of disposing of the rule for judgment, he is willing not to contest the point of suicide, yet that the issue of self-destruction would be contested at the trial, the court will refuse judgment for want of a sufficient affidavit of defense.
3. If such an issue should be decided at the trial in favor of plaintiff, the point of law raised in the affidavit of defense would not be involved in the case; under such circumstances, the court will not pass upon the question of law until an opportunity is had to fully develop the facts.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeals, Nos. 221 and 222, Jan. T., 1928, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1927, No. 2021 and 2022, discharging rules for judgments for want of sufficient affidavits of defense, in case of Real Estate Land Title Trust Co., executor of Frank Getchell Zimmerman, deceased, v. Fidelity Mutual Life Ins. Co. Affirmed.
Rules for judgment for want of sufficient affidavits of defense. Before GORDON, J.
The opinion of the Supreme Court states the facts.
Rules discharged. Plaintiff appealed. Errors assigned, inter alia, were orders, quoting record.
Arthur S. Arnold, for appellant.
Ira Jewell Williams, Jr., of Brown Williams and Charles M. Willits and George H. Wilson, for appellee, were not heard.
Argued November 30, 1928.
These two appeals are from orders refusing judgment for want of sufficient affidavit of defense. Plaintiffs sued on life insurance policies; defendant insurance company filed affidavits of defense in which it raised certain questions of law depending upon an averment of fact to the effect that plaintiff's decedent, the insured, committed suicide. While, for the purpose of disposing of rules for judgment for want of sufficient affidavit of defense, plaintiffs were willing not to contest the point of the suicide, yet counsel for the trust company stated that the issue of self-destruction would be contested on the trial of the case; hence we have the situation that, if this issue should be decided at trial in favor of plaintiff, the point of law raised in the affidavits of defense would not be involved in the case. Under such circumstances, we will not pass upon the question of law until an opportunity is had fully to develop the facts in the court below: Brown v. Unger, 269 Pa. 471, 472. In cases "requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury __________ to decide the cause, under proper instructions from the court": Federal Sales Co. v. Farrell, 264 Pa. 149, 153.
The appeals are dismissed.