Foster v. Metropolitan Life Ins. Co.

• Decision Date: 06 July 1921
• Docket Number: No. 16724.,16724.
• Citation: 233 S.W. 499
• Parties: FOSTER v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

233 S.W. 499

FOSTER v. METROPOLITAN LIFE INS. CO.

No. 16724.

St. Louis Court of Appeals. Missouri.

July 6, 1921.

Rehearing Denied July 18, 1921.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Lavinia Foster against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Henderson & Henderson, of St. Louis, for respondent.

NIPPER, C.

This is an action to recover on a life insurance policy. The policy was issued on the 15th of February, 1916, upon the life of John. H. Foster, whereby the defendant promised to pay plaintiff, wife of the insured, upon proof of death, the sum of $1,000. The policy contained the 31 days of grace clause. John H. Foster died on June 2, 1917.

Defendant in its answer admitted the issuance of the policy, which provided for the payment of quarterly premiums of $14.33 each, upon the 15th day of February, May, August, and November of each year, and sets up the affirmative defense that the premium due upon said policy on the 15th day of February, 1917, was not paid, and that thereupon said policy became lapsed and void and of no effect whatever.

Plaintiff recovered judgment against defendant for $1,000, with interest amounting to $110.83. Plaintiff introduced the policy, and made proof of death, and then introduced the following letter from the defendant, written to her, dated New York City, June 12, 1917:

"Dear Madam: In answer to your postal card of June 4th, our records show that the above-numbered policy is out of benefit, owing to the nonpayment of the February 15, 1917, quarterly premium.

                       "Yours truly,       I. J. Cahen, Manager."
                

Plaintiff thereupon rested her case in chief. Defendant then requested a peremptory instruction directing a verdict in its favor, which the court refused to give.

David Lerch, witness for defendant, testified that he was deputy superintendent of the defendant company, and had been since 1916; that he solicited the insurance, and wrote the policy in suit; that he called on deceased to collect the premium, but the deceased did not pay this premium at any time; and that he called on plaintiff after the death of the insured, and she stated she did not, know whether or not this premium had ever been paid.

Philip H. Bearkan testified that he was an agent of defendant, and had been such since August, 1916; that it was his duty to collect premiums and solicit business in the territory in which the insured lived; that he called on insured to collect the premium due February 15, 1917, on the policy in suit, but that insured did not pay him. He also stated that he called on the insured every Wednesday and every Saturday, and three or four times with respect to the payment of this premium, but that he never received payment. He further stated that when he collected a premium or failed to collect he made a record of it, and turned this record in to the home office.

A. J. Emendorf testified that he was chief clerk of the defendant company, and had been since August, 1910, except for one month in 1911; that he called on insured to collect the premium which fell due on February 15, 1917, but that insured did not pay the premium; that at that time he was deputy superintendent, and it was his duty to make an investigation, where an agent reported a policy for cancellation, to see whether or not this business had received the proper attention; that he was sent out about the middle of March to investigate this matter, and immediately after the 31 days of grace had expired. He identified the record of policies in force in the district where insured lived, and kept as a record in the office of the defendant. This record shows that the policy of insured was canceled in March, 1917, for the nonpayment of the February premium. He also stated that, so far as he knew, insured reeves made any attempt to revive the policy.

The deposition of Leon Bendel was then read in evidence. He testified that he was superintendent of the Delmar district of the defendant company since 1914. He was shown Exhibit 1, and identified same as a card record of the defendant, which is sent from New York with every policy; that upon receipt of this policy by the district office from the home office in New York it is placed in a filing cabinet, and when a policy is canceled it is marked on this card and filed in a lapsed cabinet; that if the policy is reinstated the date of the reinstatement is placed on the card, and the card is then taken from the lapsed file and replaced in the original file. This Exhibit 1 is what we have heretofore referred to as the record kept by the defendant on the policy in suit.

Clara J. Stamm testified that she was a stenographer...