Appeal from order of Court of Common Pleas of Delaware County, No. 11426 of 1963, in case of Catherine Grasso, also known as Catherine Bowman, et al. v. John Hancock Mutual Life Insurance Company.
William D. March, for appellant.
Joseph V. Restifo, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J.
[ 206 Pa. Super. Page 564]
On August 25, 1965, Anthony Grasso died, leaving three insurance policies issued in his name by the John Hancock Mutual Life Insurance Company. Mr. Grasso was separated from his wife, Grace Grasso. The named beneficiary in each of the policies was "Catherine Grasso, wife," a person with whom Mr. Grasso was living at the time of his death. Catherine Grasso is also known as Catherine Bowman, but the parties have stipulated that she is the beneficiary referred to in the policies. Mr. Grasso is also survived by a sister, Catherine Cottone, who claims the proceeds of these policies by virtue of an oral assignment.
Miss Bowman brought suit in assumpsit against the insurance company to recover death benefits under the policies. The company petitioned the court for leave to interplead Mrs. Cottone and Mrs. Grasso. The interpleader was allowed, and the proceeds of the policies were paid into court.
At trial, Mrs. Cottone took the witness stand in an effort to prove the alleged oral assignment. Miss Bowman's attorney objected to any testimony by Mrs. Cottone on the ground that she was an incompetent witness by reason of the "Dead Man's Act." Mrs. Cottone's attorney then made the following offer of proof:
"Mr. Restifo: I would like to make this offer of proof, your Honor. The testimony which I would like to elicit from Mrs. Cottone is that on Saturday,
[ 206 Pa. Super. Page 565]
August 17, 1963, the decedent came to her house and borrowed $50. from her, stating that he had to pay some premiums on his life insurance policies. And that the next day, Sunday, August 18, 1963, he came back to her house and gave her the three policies in question, stating that he was -- he wanted her to use the policy proceeds to pay for his funeral expense. He gave her the policies and along with them he gave her two receipts for life insurance premium payments."
The Court refused the offer of proof and sustained the objection. Since Mrs. Cottone could not establish the alleged oral assignment by any other evidence, she closed her case, and a verdict was directed in favor of Miss Bowman.
Mrs. Cottone filed a motion for new trial. The lower court, sitting en banc, decided that the trial judge incorrectly excluded her testimony and ordered a new ...