New York Life Ins. Co. v. Silverstein

• Decision Date: 01 December 1931
• Docket Number: No. 9166.,9166.
• Citation: 53 F.2d 986
• Parties: NEW YORK LIFE INS. CO. v. SILVERSTEIN.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F.2d 986 (1931)

NEW YORK LIFE INS. CO. v. SILVERSTEIN.

No. 9166.

Circuit Court of Appeals, Eighth Circuit.

December 1, 1931.

Richard S. Righter, of Kansas City, Mo. (Lathrop, Crane, Reynolds, Sawyer & Mersereau and George J. Mersereau, all of Kansas City, Mo., on the brief), for appellant.

Myer M. Rich, of Kansas City, Mo. (Friedberg & Rich, of Kansas City, Mo., on the brief), for appellee.

Before STONE, KENYON, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

The appellee, Anna Silverstein, brought this action against the appellant, New York Life Insurance Company, to recover upon a life insurance policy issued by that company upon the life of Max Silverstein, appellee's husband. The parties will be referred to as they appeared in the lower court. The petition is in conventional form for actions of this character, alleging that the insured died December 3, 1928; that at the time of his death all the premiums accrued and due had been duly paid; and that the insured had complied with all the conditions and provisions of the policy to be kept and complied with by him. The defendant answered, denying that the insurance policy was at the time of the death of the insured in full force and effect, and alleging that the premium due thereon September 28, 1928, had not been paid, and that by reason of the failure to pay the premium the policy had lapsed. At the close of the testimony the defendant moved for a directed verdict, which was denied, and the case was submitted to the jury upon instructions, to certain of which the defendant excepted. The jury returned a verdict in favor of the plaintiff, and judgment being entered thereon, the defendant has appealed to this court.

The issues of fact as tried in the lower court were whether or not the premium which became due September 28, 1928, had been paid so as to prevent the lapse of the policy prior to the death of the insured, or, if not, whether the defendant by its acts was estopped to deny such payment. The policy was solicited by one Sam Toub, an agent of the defendant, working for its Kansas City branch office, and was delivered to the insured about the 27th of March, 1927, although it is dated April 1, 1927. The insured died December 3, 1928. At the time of delivery the agent took a note from the insured for the first six months' premium. By the terms of the policy the premiums were payable semiannually, and there is no dispute but that the first three semiannual premiums were paid. The policy recites that: "This policy takes effect as of the 28th day of March, 1927, which day is the anniversary of the policy."

Over the objection of defendant, the court permitted plaintiff to testify as to a telephone conversation which she claims she had with the Kansas City branch office of the defendant on the 26th of November, 1928, concerning the payment of premiums. She testified that her husband had a very bad attack of sickness about 1 o'clock a. m. November 25, 1928, and that on the next day she had a conversation over the telephone with someone in the defendant's office. She testified that she first looked in the telephone directory, found the name of the defendant and the number of its telephone, and called the number, using a dial telephone. At the time, the defendant employed in its Kansas City branch office one telephone operator and about twenty clerks. Plaintiff was unable to identify either of the persons with whom she talked. She testified in substance as to this conversation as follows: "I asked for Mr. Toub. They said Mr. Toub was out and they didn't know when he would be in. I asked to talk to somebody about the premium and so somebody came on the line. A man came on the line and he says, `Wait a minute.' I asked him if the premium was paid up and he came on the phone and he said, `Yes, it is all right.'"

On cross-examination she testified as follows: "I asked when Mr. Toub would be in and the clerk over the phone said she couldn't tell me. I asked to talk to somebody in regard to the premium, and a man answered the phone and I said, `This is Mrs. Silverstein talking, and I want to know if Mr. Silverstein's premium is paid.' He said, `All right, wait a minute.' He came back and said, `It is all right.'"

It is strenuously urged that the admission of this testimony was prejudicial error. Telephone companies are common carriers of messages, and telephone systems are now an established part of the means of communication constantly used in modern business and social life. Where a face to face conversation between a witness and another person would be admissible in evidence, a conversation between such persons over the telephone is admissible, provided the identity of the person with whom the witness speaks is satisfactorily established. Proof of identity is usually established by the witness' recognition of the voice of the person with whom he speaks. But the identity of the speaker may be established by other means, and where a witness calls the office of an established business on the telephone, his testimony as to the conversation had with the person answering the telephone and purporting to speak on behalf of the party is competent even though the witness does not recognize the voice of the person speaking and is not able to identify the speaker. This is based upon the presumption that one who answers a telephone call from the place of business of the person called for, and undertakes to respond as his agent, has authority to speak for him. The trend of well-reasoned modern authority is well stated by the author of the article on Evidence in 22 C. J. 193, as follows: "The rule requiring the identity of the speaker to be established is subject to a well recognized exception to the effect that, where the witness called the office of a party on the telephone, testimony as to a conversation had with a person answering the telephone and purporting to do so on behalf of the party is competent, although the witness did not recognize the voice of the person who spoke and is unable to identify the speaker, for the reason that one who answers a telephone call from the place of business of the person called for, and undertakes to respond as his agent, is presumed to have authority to speak for him in respect to the general business there carried on and conducted."

See, also, American & British Mfg. Corp. v. New Idria Quick Silver Mining Co. (C. C. A.) 293 F. 509; Wolfe et al. v. Missouri Pacific Ry. Co., 97 Mo. 473, 11 S. W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331; Star Bottling Co. v. Cleveland Faucet Co., 128 Mo. App. 517, 109 S. W. 802; Meyer Milling Co. v. Strohfeld, 224 Mo. App. 508, 20 S. W.(2d) 963; Meeker v. Union Electric Light & Power Co. (Mo. Sup.) 216 S. W. 933; J. E. Hood & Co. v. McCune (Mo. App.) 235 S. W. 158; Kansas City Star Co. v. Standard Warehouse Co., 123 Mo. App. 13, 99 S. W. 765; Gardner v. Hermann, 116 Minn. 161, 133 N. W. 558; Gilliland v. Southern R. Co., 85 S. C. 26, 67 S. E. 20, 27 L. R. A. (N. S.) 1106, 137 Am. St. Rep. 861; Kiviniemi v. Hildenbrand, 201 Wis. 619, 231 N. W. 252.

The defendant offered no testimony on this point, so that it stands without dispute that the conversation in fact occurred, and under the authorities above cited, it is presumed that the person with whom the plaintiff held this conversation had authority to speak for the defendant on the subject inquired about. There was, therefore, no error in admitting this evidence.

In addition to the question whether the semiannual payment due September, 1928, had been paid, the court submitted to the jury the question as to when the policy took effect. The application, which was made a part of the policy, provides that: "It is mutually agreed as follows: That the insurance hereby applied for shall not take effect unless and until this policy is delivered to and received by the applicant and the first premium paid in full during his lifetime."

Plaintiff in her petition alleged that on or about the 1st day of April, 1927, the defendant executed and delivered to the insured its policy of insurance whereby it insured the life of said Max Silverstein in the sum of $5,000; that the insured up to the time of his death had paid all the premiums accrued and due on the policy, and had in all respects complied with the conditions and provisions of the policy. The policy, as has already been noted, recites on its face that it takes effect March 28, 1927. In the application which was signed by the insured, in question...