Clausse v. First Security Corporation

• Citation: 123 Utah 616,261 P.2d 375
• Decision Date: 30 September 1953
• Docket Number: No. 7930,7930
• Parties: CLAUSSE, v. FIRST SECURITY CORP. et al.
• Court: Supreme Court of Utah

Page 375

261 P.2d 375

123 Utah 616

CLAUSSE, v. FIRST SECURITY CORP. et al.

No. 7930.

Supreme Court of Utah.

Sept. 30, 1953.

Herbert B. Maw, Salt Lake City, for appellant.

Young, Thatcher & Glasmann, Ogden, Fabian, Clendenin, Moffat & Mabey, Peter W. Billings, Salt Lake City, for respondents.

WOLFE, Chief Justice.

Plaintiff, Marie C. Clausse, as administratrix of the estate of Leon L. Clausse, deceased, sued First Security Bank of Utah and the American National Insurance Company, defendants, to recover $2,000 claimed as due and owing under an alleged oral contract of mortgage insurance between deceased and defendants. From a judgment of dismissal in favor of each of the defendants, plaintiff appeals urging that the trial court erred (1) in striking certain testimony of plaintiff and her son, Roscoe Clausse, and (2) in granting a motion of dismissal in favor of each of the defendants on the ground that there were insufficient facts to warrant the case being submitted to the jury. It is not clear from the record whether the court did strike any of the testimony of the plaintiff and her son. However, considering all the evidence, it is clear that the trial court did not err in entering a judgment of dismissal in favor of each of the defendants.

About December 18, 1948, Mr. and Mrs. Clausse, decedent and plaintiff, respectively, made application to defendant Bank for a loan of $2,500 to be secured by a mortgage on their home. On the afternoon of December 18, 1948, Mr. Carl Porter and Mr. S. T. Jeppeson, Vice Presidents of defendant Bank, visited the Clausse home to appraise it. They found the house to be of satisfactory security value and told the Clausses that the loan and mortgage would be approved. Mrs. Clausse testified that at that time Mr. Jeppeson stated to her husband that the Bank had a plan with an insurance company that would take care of the mortgage in case anything happened to him; that he did not write the insurance plan but he would send out a representative to write the plan; that payments could be added to the mortgage installments and be paid to the bank along with payment of the mortgage; that the first payment could be made on the first of February; and that her husband told Jeppeson that he would like to take the insurance but wanted coverage of only $2,000 instead of $2,500.

Mrs. Clausse further testified that at this time Jeppeson and Porter handed the deceased a pamphlet entitled 'Mortgage Cancellation Plan.' The first page of that pamphlet states in bold face type, 'Mortgage Cancellation Plan _____ a home for the family.' The text in substance explains the desirability of having a home, mortgage free, and points up the problems a family is faced with when the breadwinner dies and the family home remains mortgaged. The brochure offers the First Security Mortgage Cancellation Plan as the solution to the problem arising from the death of the breadwinner in a family. Inquiries concerning the plan are solicited.

Sometime between the 18th and the 23rd of December, 1948, Mr. and Mrs. Clausse executed a note for $2,500 and a mortgage on their home in favor of the Bank. The note was due January 1, 1954, and was made payable in monthly installments of $49.50 commencing in February, 1949. The monthly installments included interest but did not include any premium for insurance.

Mrs. Clausse testified that when she delivered the instruments to the Bank she again talked with Mr. Jeppeson. She testified:

'Mr. Jeppeson told me that Lee [decedent] had authorized him to go ahead with the insurance. He would send the representative out, and it would be added to the installments to be paid at the bank and that he would send him out, that he didn't write the insurance, the mortgage insurance, but he would send the representative out to the house.'

About the 27th day of December, 1948, plaintiff and her husband received a letter bearing the heading, 'Real Estate Management Company,' which company on or prior to that date was absorbed by the Bank and which for the purposes of this action may be considered the Bank. The material portions of the letter are set out below:

'In line with the policy of many loan companies * * *, we have worked out with the American National Insurance Company a plan, which at a very nominal cost, will guarantee the payment of your mortgage for you in case of your death, and at the same time, will be a savings plan for you.

* * *

* * *

'This protection can be obtained for you entirely upon your approval, leaving you to make the decision whether or not you want to carry it until after you have had an opportunity to examine the contract. I am asking Reynolds Blackington, local representative of the American National Insurance Company, to call on you in the near future and explain this plan to you. You may listen to his explanation without feeling that he is there to sell you additional life insurance, but rather to explain to you a plan which we believe is very desirable, and to give you the opportunity to carry it, if you so desire.

'Very truly yours,

'J. D. Madson

'Assistant Secretary.'

At the time of the occurrences relating to this controversy, J. D. Madson was an assistant Vice President of the defendant Bank.

January 5, 1949, Reynolds Blackington, the representative of the American National Insurance Company mentioned in the Madson letter, visited the Clausse home. Mrs. Clausse testified that Blackington stated that Mr. Jeppeson had asked him to come out and go over the plan. Mrs. Clausse further testified:

'They [Blackington and decedent] went over the questions [of the insurance application] together, and Mr. Blackington explained that it would be paid along with the mortgage at the bank each month, and Lee told him that he had already made arrangements with Mr. Jeppeson to take care of them at the Bank, and Mr. Blackington said that it was O. K. that they handled all of them.'

Mrs. Clausse stated that the deceased read the application for insurance and signed it. She testified that the insurance doctor examined her husband the following day and pronounced him '* * * in perfect condition * * * .' She further stated that Blackington said that the plan '* * * would take effect immediately, all during the period of the mortgage.' On cross-examination she stated that it was to take effect '* * * immediately when he was there that night.'

At various times during the cross-examination of Mrs. Clausse the following interchanges with counsel took place:

'Q. * * * you understood, did you not, that what Mr. Jeppeson said was that if you and your husband desired to avail yourself of a plan, which was available that you might take out an insurance policy upon his life; that was it? A. That is correct, it was----

'Q. A life insurance policy on the life of either yourself or your husband, or both, as you might desire; that was the substance of it? A. Well, yes, to cover, in case anything happened to him, it would cover the mortgage.

* * *

* * *

'Q. In other words, a life insurance policy in case he died, then there would be money available from the proceeds of the policy to pay it: that was it, wasn't it? A. He was insured: that was it.

* * *

* * *

'Q. So you knew that the Bank wasn't going to pay it unless there was a policy issued by the Insurance Company, so that the Insurance Company would pay the policy? didn't you? A. Yes.

'Q. Did you understand that the Bank was going to pay that policy? A. No, we was to make payments at the Bank, where they would reimburse the insurance company.

* * *

* * *

'Q. You understood that Mr. Jeppeson didn't write any insurance, didn't you? A. Yes.

'Q. All he would do would be to send the insurance agent out to your husband's home if you people wanted to act on it: wasn't that it? A. He worked with the First Security Bank, yes.'

The testimony of Roscoe Clausse is substantially in accord with the testimony of plaintiff.

Mr. Clausse died on January 24, 1949, at which time no premium payments had been made by him to either the Bank or the Insurance Company. The defendant Insurance Company had issued no policy.

Plaintiff contends that from the foregoing evidence it may be inferred: (1) that an offer of mortgage insurance had been made by Mr. Jeppeson and Mr. Porter to the deceased and that the offer was accepted by him; (2) that the consideration (monthly premiums to be paid by the deceased to the Bank) had been agreed upon and the deceased had authorized the Bank to add the insurance premiums to his monthly payments on his note and mortgage, in return for which the Bank agreed to cancel the mortgage in case of his death; (3) that the insurance took effect on the signing of the note and mortgage.

Contrary to plaintiff's contentions, the trial court correctly entered a non-suit in favor of defendant Bank. There is insufficient evidence to warrant a finding of (1) an oral offer on the part of the Bank to insure the mortgage, and (2) an acceptance on the part of the decedent of the purported oral offer of the Bank. The evidence does indicate that the agents of the Bank 'sold' decedent on the 'idea' of taking out a policy of insurance on his life, the proceeds from which could be used to cancel the mortgage in the event that he died. It is clear that the agents of the Bank undertook to send to deceased a representative of the American National Insurance Company to write the insurance. There is no evidence that an oral contract of 'mortgage insurance' took effect upon the execution of the note and mortgage by the Clausses as is contended...