Girvin v. Metropolitan Life Ins. Co.

• Decision Date: 02 October 1934
• Docket Number: No. 5418.,5418.
• Parties: GIRVIN v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

75 S.W.2d 596

GIRVIN v. METROPOLITAN LIFE INS. CO.

No. 5418.

Springfield Court of Appeals. Missouri.

October 2, 1934.

Rehearing Denied November 9, 1934.

Appeal from Circuit Court, New Madrid County; John E. Duncan, Judge.

"Not to be published in State Reports."

Suit by Julia Girvin against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BAILEY, Judge.

This is a suit on a life insurance policy in the sum of $2,000 issued on the 22d day of November, 1921, upon the life of one Walter Girvin. The latter died February 23, 1933. The policy was payable to the estate of the insured. This suit was brought by his widow, beneficiary named in the policy, after having obtained an order from the probate court issuing letters of no administration and authorizing plaintiff, as widow, to collect and sue for all property belonging to the estate. Deceased owed $310 on the policy and the amount for which suit was brought was $2,000, the face of the policy, less the $310.

The petition is in conventional form. The answer consisted of a general denial and a plea that the policy had lapsed for nonpayment of the annual premium due November 21, 1928, and the further plea that plaintiff had no right to maintain the suit for the reason she was not the beneficiary named in the policy. Plaintiff's reply was a general denial of the new matter pleaded. On the issues thus made a trial was had to a jury which resulted in a verdict and judgment for plaintiff in the sum of $1,589. From this judgment defendant has appealed.

The point that plaintiff had no right to maintain this action was abandoned in defendant's brief and will therefore not be considered.

At the trial defendant offered a demurrer to the evidence at the close of plaintiff's case and again at the close of the whole case. Error is assigned in the overruling of these demurrers. Since defendant offered evidence in its own behalf after the close of plaintiff's case, the demurrer offered to her case must be deemed abandoned. The sole question in the case is whether or not defendant was entitled to a directed verdict at the close of the whole case.

Plaintiff made a prima facie case by introducing the policy in evidence, making formal proof of the death of the insured, that she had been made beneficiary in the policy, and had made due proof of notice. The burden of proving nonpayment of the premiums and lapse of the policy was thereby cast upon defendant. Waters v. Bankers' Life Ass'n, 226 Mo. App. 1188, 50 S.W.(2d) 183; State ex rel. v. Reynolds, 277 Mo. 14, loc. cit. 20, 208 S. W. 618.

In order to sustain that burden defendant first used J. R. Hayden as a witness. He lived at Caruthersville and had been an agent for defendant company since 1921. He testified that he sold the insurance policy in question to Mr. Girvin and collected the premiums due for about four years; that plaintiff borrowed money on the policy; that the company had a branch office in Caruthersville, the district office in Poplar Bluff; that Pemiscot and New Madrid counties are in the Poplar Bluff district; that they have agents in charge of the suboffice at Caruthersville, and that it was a part of the duties of such agents to collect the premiums due on policies; that he would deposit the money he collected in the bank and send the deposit slip to the Poplar Bluff office; that the insured Mr. Girvin moved from Pemiscot county in 1927 or 1928 to New Madrid, and the business was transferred to the local agent at Portageville; that he did not know whether the insured paid premiums to the local agent at Portageville or not; that the cash or loan value of this policy in 1928, six years after it was issued, was $282; that he collected no premiums on this policy after 1928; that Girvin lived at Portageville after 1928 or 1929.

Leon C. Blackman testified on behalf of defendant, by deposition, substantially as follows: That he lived at Belrose, N. Y., and for twenty-five years had been in the employ of defendant insurance company and for five and one-half years had been the head of the Renewal Department; that he had charge of the records of the company pertaining to remittance of premiums; that a card introduced in evidence was the original renewal card showing premium payments on the policy; that this card showed the annual premium was $98.82; that the first annual premium was due November 21, 1922; that the premium card shows the premiums were paid for the years 1922, 1923, and 1924; that the 1925 premium was paid by a loan and by applying a dividend of $11.56; that Defendant's Exhibit B was a card showing further premium payments. This card was offered in evidence and is in words and figures as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This witness further testified that the above Exhibit B shows that another loan was placed against this policy in 1926 which together with the dividend of $12.06 paid the premium for that year; that a third loan was placed against the policy for 1927 and with the dividend of $16.30 the premium was paid for that year; that the renewal card shows the premium for 1928 was not paid and that the policy lapsed for nonpayment of this premium; that the card shows that a dividend of $16.90 was payable and that this dividend was paid by means of a check drawn to the order of the insured, dated October 16, 1929; that the dividend was paid by check because it was not sufficient to pay the annual premium of $98.82 and that there was no further cash value in the policy which could be used to purchase paid-up insurance; that since there was no cash value the dividend could not be used to pay the premium and was not so used.

It will be noted that the above Exhibit B shows, under the year 1929, a dividend of $17.56 through which is drawn two lines. No explanation of these figures or lines was given by the witness. It will further be observed that a number of marks and figures appear which are not explained and could not be understood in the absence of some explanation. Under the heading of "canceled" appears the letters "R. W.," then some unintelligible figures, and the further figures "14 '29." Just what these figures mean was not explained.

Nelson Brooks testified by deposition for defendant to the effect that he had been employed by defendant for about seven years; that he worked in the loan record department; that the loan record card showed a loan of $124 granted December 22, 1925; that another card showed a loan of $212.20 in 1926, from which was deducted the prior loan of $124; that a third card showed a loan of $310 in 1927 from which was deducted $212.20, the...