ELLIOTT v. McGOUN, 307 Pa. 185 (1932)

160 A. 705

Elliott, Appellant, v. McGoun.

Supreme Court of Pennsylvania.March 21, 1932.
April 11, 1932.

Judgment — Rule for judgment — Affidavit of defense — Questions of law — Practice, C. P. — Appeal — Review generally — Insurable interest.

1. On a rule for judgment for want of a sufficient affidavit of defense, where important and involved questions of law are raised, and when the outcome is doubtful, or it is essential that there be a broad inquiry into the facts, a refusal to give judgment on the pleadings will not be disturbed on appeal. [186]

2. The question of insurable interest of assignee of insurance policy was involved. [186]

Argued March 21, 1932.

Before FRAZER, C. J., SIMPSON, KEPHART, MAXEY, DREW and LINN, JJ.

Appeal, No. 87, March T., 1932, by plaintiff, from order of C. P. Lawrence Co., June T., 1931, No. 120, discharging rule for judgment for want of sufficient affidavit of defense, in case of Maggie A. Elliott v. Herbert D. McGoun. Affirmed.

Assumpsit to recover proceeds of policy of life insurance.

Page 186

Rule for judgment for want of sufficient affidavit of defense. Before CHAMBERS, J.

Rule discharged. Plaintiff appealed.

Error assigned was discharge of rule, quoting record.

Clarence A. Patterson, with him J. Clyde Gilfillan, o Gilfillan Patterson, for appellant.

Wylie McCaslin, W. Walter Braham, of Aiken Braham, William D. Cobau and J. Glenn Berry, for appellee, were not heard.

PER CURIAM, April 11, 1932:

This appeal raises the question of the sufficiency of an affidavit of defense in an action of assumpsit to recover the proceeds of a life insurance policy. Plaintiff is the beneficiary originally named in the policy and defendant the assignee to whom the proceeds were paid upon the death of the insured. Subsequent to the assignment the assignee paid the premiums as they fell due until the death of the insured. Plaintiff’s motion for judgment for want of a sufficient affidavit of defense rested chiefly upon the ground that there was no insurable interest in the assignee. After argument the lower court refused the motion.

Upon careful scrutiny of the pleadings and consideration of the questions involved, we are of opinion this is not such a clear case as to warrant judgment for want of a sufficient affidavit of defense. Several important and involved questions of law have been raised, and where the outcome is doubtful or it is essential that there be a broad inquiry into the facts, our rule is well established that the refusal to give judgment on the pleadings will not be disturbed: Leiby v. Lutz, 224 Pa. 377.

The order of the lower court is affirmed, and the record remanded with a procedendo.

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