The opinion of the court was delivered by: MARSH
This action was brought by Harry Schlanger, plaintiff, against Eva Rothman and Aetna Life Insurance Company, defendants, to recover possession of a certain life insurance policy. At pretrial conference, with consent of all parties, the action was dismissed against the Insurance Company. The case was tried to the court without a jury. The court makes the following findings of fact, conclusions of law, and decree:
1. Plaintiff is a citizen of Arizona residing in Tucson.
2. Defendant is a citizen of Pennsylvania residing in Pittsburgh.
3. A policy of insurance, No. N679,486, dated May 26, 1927, was issued on the life of plaintiff by Aetna Life Insurance Company, the said policy having a face value of $ 10,000 and a cash value as of the date suit was filed in excess of $ 3,000. This policy is in full force and effect. Plaintiff has paid all the premiums due thereon.
4. On August 6, 1955, plaintiff was the owner of said policy and notified the insurer that he desired to designate defendant as the primary beneficiary and Fred Rothman, a grandnephew, as contingent beneficiary. This change of beneficiary was duly effected by the insurer pursuant to the terms of the policy, after which the policy, accompanied by a letter of transmittal under date of September 1, 1955, was delivered by mail to plaintiff at his home.
5. By the terms of the policy, plaintiff reserved the right to change the beneficiary.
6. Plaintiff owned six or seven other policies of life insurance which at all times pertinent to this controversy were in the custody of plaintiff's local insurance agent.
7. The policy,
the letter of transmittal,
and the envelope in which they were mailed remained in the den of plaintiff's home in Tucson from the time they were delivered to him by mail in September, 1955, until removed therefrom by defendant in February, 1956; since then defendant has had possession of the policy and letter until she produced them at the trial where they were admitted in evidence. The policy and letter of transmittal are now in the custody of the Clerk of Court.
8. In the summer of 1956, plaintiff desired to again change the beneficiary in the policy and borrow on it but was unable to accomplish this because he was unable to deliver the policy to the insurer. Plaintiff thereupon requested defendant to return the policy to him. She refused, claiming ownership.
10. At that time, defendant, recently widowed, worked as a saleslady at Katzman's Dress Shop, McKeesport, Pennsylvania. She resided with a sister where she received free room and board. Responding to plaintiff's invitation, she secured a temporary leave of absence from Katzman's and arrived in Tucson about June 5, 1955. Plaintiff paid her transportation expenses. Prior to this time, defendant had not seen plaintiff for about 10 or 15 years, but they had kept in contact with each other and were on friendly terms.
11. The defendant undertook the duties of housekeeper at plaintiff's home; she also administered hypodermics and drove him about in his car. After a month, she resigned her position at Katzman's and agreed to stay on as housekeeper, for which services plaintiff agreed to and did pay her $ 200 per month plus room and board. He also gave her some jewelry and there is some testimony that he gave her some other money and paid some of her medical expenses. For a time defendant handled plaintiff's bank accounts as his attorney-in-fact.
12. In early October, 1955, plaintiff and defendant visited Pittsburgh where plaintiff discovered he was in need of surgery. The parties returned to Tucson about the end of October. Plaintiff entered the hospital there about November 1, 1955, where he remained until about March 1, 1956; he underwent three surgical operations for cancer and was quite critical at times. Defendant remained in control of plaintiff's home until the latter ...