Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-10-20
Androscoggin Co. Rescript.

Aetna Life Insurance Company In Re
view. VS.. Patrick +. Tremblay.
Rescript, Whitehouse j.
Jean O. Tremblay of Quebec, father of
the defendant in review. took out a poll
cy of insurance on his life for $1,000 from
the plaintiff Company payable to his wife.
and subsequently with her consent, as
signed the policy to Mr. Cloutier of
Quebec as security for advances made
ana to be made for Tremblay A few
days before his DEATH he and his wife
assigned all their interest in the policy
to their son Patrick +. Tremblay of Lew
iston, the defendant. subject to the rights
of Cloutier under his prior assignment.
Upon the death of the insured, Cloutier
and the defendant each claimed the entire
amount of the insurance money, the de-
PENDANT insisting that there was but lit
tie due Cloutier under his assignment
ThereupOn, under law of the Province,
the Insurance Company paid the amount
due on the policy ($1959.49 into the Treas
ury of Quebec. and as a result of proceed
in2S commenced by Cloutier in the Su-
perior Court of Quebec a judgment was
rendered in his favor for the full amount
and the Provincial Treasurer paid over
dant, Patrick f. Tremblay thereupon
commenced an action in the Supreme Ju-
dicial Court of Androscoggin county
against the Insurance Company to recover
| the amount of his policy under his as
| sisnment, and judgment was rendered in
! his favor in that suit for the full amount
of the policy, See 81 Maine, 547. The
| Company next brought bill in equity
| against this defendant to have the
amount due Cloutier out of the fund as
certained and deducted from the judg-
ment. But it was held by the court that
| by paying the full amount of the policy
to ClOutier. the Company was subrogated
| 10 his right to pay part of the insur-
ance money as against any claim there
| for by a subsequent assignee of the poll
cy, that this right by subrogation was an
II. nf .lnf Ia
have been interposed in the action at law
and hence that it was not Il ground for
subsequent relief in equity. 101 Maine 5SS.
| Thereupon, pursuant to petition OF the
| Insurance Company a review of the ac-
/ ton at law in Androscoggin county was
granted by this court for the sole purpose
of having the amount due Cloutier out of
| the insurance fund determined and de-
Iducted from the Judgment in that action.
| The writ of review having been entered
in court, Hon. Franklin NJ. Drew was APP
pointed auditor therein to state the ac-
count and report to the court the amount
|appearing to be due Cloutier The auditor
reported that the sum due Cloutier under
| the assignment WAS $S1333 The contro-
versy now comes to this court for the
| third time, on report OF the evidence m
| GLIDING the auditors report. The audi
tors report is prima facie evidence of
the amount due Cloutier and is decisive
unless impeached, rebutted, disproved or
controlled Rumford Falls Boom Com
| pHnN VS.. kunllOlu ais Paper 1olll-
pany. 80 Maine, sc.
| After examination of the evidence. IT is
| the opinion of the court that the conclu-
sion of the auditor is not shown by a pre-
ponderance of the evidence to be erro-
neOuS and it must therefore be accepted
as decisive of the cause. According to
section T. of chapter 81. r. S.. when the
sum first recovered is reduced, the oriSi-
nal defendant shall have judgment for the
difference with costs on review; and If
the former judgment has not been salts
fled, one Judgment may be set off against
the other and execution be issued for the
balance" In this case "the sum first re-
covered" was $1g59.49 with interest from
April u, 1901 and judgment was accor-
dinghy entered for $2204.1 and costs of
suit taxed at $3.50. But the sum of 1913 SO
due Cloutier should have been deducted
from this sum of $195949 and the origi-
nal Judgment should have been for STAG
l6 with interest from April p, 1901. The
| Insurance Company which was the origi-
nal defendant and is now the plaintiff in
review is accordingly entitled to have
| Judgment for the difference, namely, viz:
$Sl333 with interest from April u, 1901 to
| the date of the original judgment and
| costs of review" and if the former judg-
Iment has not been satisfied this last
named Judgment shall be set off pro
ltanto against the former Judgment" and
| execution be issued for the balance"
with interest to the date Of it's issue.
| Judgment for the plaintiff in review for
$Sl33} with costs on review and inter-
est as stated in the opinion.