Harl v. Acacia Mutual Life Insurance Company, 17015.
| Decision Date | 05 April 1963 |
| Docket Number | No. 17015.,17015. |
| Citation | 115 US App. DC 166,317 F.2d 577 |
| Parties | Patricia HARL, Appellant, v. ACACIA MUTUAL LIFE INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Leon Shampain, Mt. Rainier, Md., for appellant.
Mr. Jo V. Morgan, Jr., Washington, D. C., with whom Messrs. Roger J. Whiteford and John J. Wilson, Washington, D. C., were on the brief, for appellee.
Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.
The appellant is the widow of Richard D. Harl, a U. S. Navy bandsman who was killed in an aircraft collision in Brazil on February 25, 1960. As beneficiary under appellee's policy insuring the life of her husband, appellant sued to recover $14,140, with interest from February 25, 1960, stipulated to be the amount of recovery if the appellant is found entitled to prevail. Acacia asserted as a defense that the policy had lapsed because of failure to pay premiums in accordance with the terms and provisions of the contract, and then moved for summary judgment. A district judge denied the motion, whereupon the appellee took the appellant's deposition, and again moved for summary judgment. Although the second motion was opposed, a different judge entered summary judgment in favor of the appellee, and this appeal followed.
Before us is a stipulation of certain facts and a record which includes in addition to the pleadings, the appellant's deposition, various answers to interrogatories, affidavits, a copy of the policy and pertinent exhibits. Whether or not Acacia between March 21, 1958, and February 8, 1960 had pursued a course which reasonably could lead Harl to believe that a lapse would not be charged against him, or if a lapse occurred, whether or not Acacia had waived that lapse, is clearly material. We are unable to say that Acacia has met its burden of showing the absence of any genuine issue in such respects.1
Compendiously, the record shows that in February, 1958, appellant and her decedent obtained a mortgage loan of $14,000 from Acacia. The Company issued the policy in suit with a mortgage retirement agreement which involved allotments from the Navy pay of the decedent at the monthly rate of $136, of which $127.78 was to be applied to the mortgage note, taxes and insurance, and the balance of $8.22 was to pay the life insurance premium. The insurance contract provided that any "premium hereon is payable in advance at the Home Office of the Company." Harl made the first payment as of February 25, 1958 to cover the premium from March 21, 1958 to April 21, 1958, after which the monthly allotments were to be used to keep the account current.
The mortgage loan was paid in full by May, 1959, but the Navy allotments were not discontinued until July. With the policy paid up at least until August 21, 1959, Acacia on September 9, 1959, wrote to Harl requesting that payments thereafter at the adjusted rate of $8.59 per month be made to it "regularly and within the liberal time limit provided by your contract."2 The letter outlined various plans and informed Harl whichever "you select, we will send you regular reminders well in advance of the time a payment is due."3
In answering appellant's interrogatories, the Company submitted a record of payments from which we abstract the following:
Dates How Date Date
From To Amount Paid Received Posted
8/21/59 9/21/59 $ 8.59 Payment 10/ 5/59 10/12/59
9/21/59 10/21/59
$17.18 " 11/ 2/59 11/ 5/59
10/21/59 11/21/59
11/21/59 12/21/59 $ 8.59 " 12/14/59 12/17/59
The contract was in force at least 31 days from December 21, 1959. Some time thereafter Acacia sent to Harl a "reminder and late remittance offer." The notice recited that an $8.59 payment had not been made in the grace period, and added, "However, you may still pay your premium without interest or application for reinstatement provided it is received in our office on or before Feb. 5, 1960." That date fell on a Friday. On Monday, the next business day, receipt stamped "February 8, 1960, 10 A. M.," the Company received in its printed return envelope postmarked February 6, 1960, 12 M.,4 a check for $17.18, dated February 5, 1960, and signed by Harl. The Company under date of February 12, 1960, acknowledged receipt of that check, which it cashed,5 and transmitted an application for reinstatement with directions that Harl complete and return the form "just as soon as you can." The Company added a postscript which read:
"P.S.: If it is not convenient for you to furnish us with the above item in time to reach the Home Office prior to February 21, 1960, please also send us an additional deposit of $8.59 to cover the monthly premium due on that date."6
On such facts and on the record then before the district judge, Acacia's first motion for summary judgment was denied, properly we think.7
Acacia thereupon took the appellant's deposition on February 1, 1962. It was developed that Harl had left the country on a Navy assignment on the morning of February 6. Additionally it was brought out, that Harl had taken "care of all his business before 7 o'clock the evening before." Details as to the mailings by either the Company or Mrs. Harl added nothing to what had earlier been before the court with reference to the critical events touching the issue upon which continuance of the contract depended except insofar as, arguably, they might tend to support the inferences and conclusions as claimed by the appellant.
Acacia then filed its second motion for summary judgment. It asked for judgment alleging that it now appeared the decedent had not received the...
To continue reading
Request your trial
-
Siegel v. Kreps, 77-1549
...believes that a litigant's version of events is unlikely to prove true in the event of trial. Harl v. Acacia Mut. Life Ins. Co., 115 U.S.App.D.C. 166, 168-169, 317 F.2d 577, 579-580 (1963). However, even with the details of the meeting with Cerwonka in dispute, I think summary judgment was ......
-
Arrasmith v. Pennsylvania Railroad Co.
...shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. Harl v. Acacia Mutual Life Insurance Company, 115 U.S.App.D.C. 166, 317 F.2d 577, 580 (1963) citing with approval Sprague v. Vogt, 150 F.2d 795, 801 (8 Cir.1945)." Rogers v. Peabody Coal Co., sup......
-
Emmett v. Eastern Dispensary and Casualty Hospital
...471, 472 (1965). See also Semaan v. Mumford, 118 U.S.App.D.C. 282, 283, 335 F.2d 704, 705 (1964); Harl v. Acacia Mut. Life Ins. Co., 115 U.S.App.D.C. 166, 168-169, 317 F.2d 577, 579-580 (1963); Dewey v. Clark, 86 U.S.App.D. C. 137, 140-143, 180 F.2d 766, 769-772 9 "In the courts of the Dist......
-
Gray v. Greyhound Lines, East
...the hiring practices and the injuries cannot be resolved on a motion for summary judgment. See Harl v. Acacia Mutual Life Ins. Co., 115 U.S.App.D.C. 166, 169, 317 F.2d 577, 560 (1963).17 In another recent equal employment case the court stated that it was "willing to recognize psychological......