Le Page v. Metropolitan Life Ins. Co.
| Decision Date | 14 July 1958 |
| Docket Number | No. 1,No. 46108,46108,1 |
| Citation | 314 S.W.2d 735 |
| Parties | Marian LE PAGE, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Defendant-Respondent |
| Court | Missouri Supreme Court |
Paul Taub, Overland, for plaintiff (appellant).
Fordyce, Mayne, Hartman, Renard & Stribling, William W. Sleater, Jr., St. Louis, for defendant (respondent).
HOLMAN, Commissioner.
On November 5, 1954, defendant issued a policy of life insurance in the sum of $7,000 upon the life of Louis E. LePage. Plaintiff, the wife of insured, was named as beneficiary in the policy. The insured died on March 29, 1955. In this action plaintiff sought to recover the amount alleged to be due upon the said policy. In accordance with the verdict of the jury the trial court entered a judgment for plaintiff in the sum of $7,546. Thereafter, the court sustained the defendant's motion for judgment in accordance with its motion for a directed verdict and the judgment for plaintiff was set aside and judgment entered for defendant. In the alternative, the court also sustained defendant's motion for new trial. Plaintiff has duly appealed.
In its answer defendant admitted (1) the issuance of the policy on the date heretofore mentioned, (2) that plaintiff was the wife of insured and was named as beneficiary in the policy, and (3) that insured died on March 29, 1955. At the trial defendant admitted that the first quarterly premium of $24.22 was paid and that plaintiff had made claim for the amount of the policy and that payment had been refused. The vital, contested issue in this case related to the payment of the quarterly premium which became due on February 5, 1955. Plaintiff contended that she paid the premium by a check dated February 5, 1955, which she mailed to the office of defendant. Defendant admitted receipt of the check but asserted that it was dishonored by the bank upon which it was drawn; that defendant never received the amount thereof or the amount of said premium; and that the policy lapsed for nonpayment of said premium prior to the date of the death of insured.
The policy sued on contains the following provisions: It was agreed that the grace period herein expired on March 8, 1955.
Plaintiff testified that in January 1955 the insured received a notice in regard to the instant premium; that on or about February 5, 1955, she mailed the notice back to the defendant, together with a check in the sum of $24.22 in payment of same and thereafter received a receipt for the check from the defendant. Upon cross-examination she stated that the check was drawn on St. Johns Community Bank in which she and her husband maintained a joint account; that her husband would also draw checks on the account and sometimes did so without advising plaintiff thereof. She stated further that she had no knowledge that the check had not been paid until she received a statement from the bank, after the death of her husband, which disclosed that the check had not been charged against her account.
Plaintiff also testified to the following:
* * *
'Mr. Taub: That is all.' Cross-examination by Mr. Sleater: 'Q. You mean you just thought that that money was there, is that it? A. I never called to check.
'Q. You never checked, but you did get this--later on from the bank--this statement that covered several months? A. After my husband had died.
'Q. And you learned that the check--after you went over that statement, didn't you, that the check you had given for $24.22 had not been honored by the bank? A. It wasn't on my statement.
'Q. It wasn't on this green statement showing it as having been paid? A. No 'Q. And you never paid that check, did you? A. No, I never paid it.
'
Evidence on the part of defendant indicated that the check was received on February 8, 1955, and deposited in the Mercantile-Commerce National Bank on February 10. An effort was made to clear the check (it was twice presented to the St. Johns Bank) but it was returned unpaid to Mercantile-Commerce on February 18, charged back to the defendant's account and mailed by the bank to defendant.
Mr. Jack Isherwood, assistant cashier of St. Johns Community Bank, testified that the check in question was presented the first time on February 14, and again on February 16, but was not paid because the account of Mr. and Mrs. LePage was then in overdraft. He stated that the account was overdrawn at all times during the period from February 4 until March 21. He also testified that a statement had been mailed to these depositors about March 25, 1955, which would have disclosed that the check had not been paid.
Ralph R. Conroy, an agent for defendant, testified that he called on plaintiff on February 23, 1955, and informed her that the check had been returned to the company and that she told him she would mail the money in during the week end.
The agent who obtained the application for the instant policy, Irvin J. Nelson, testified that the check in question was delivered to him by the office cashier on February 23, 1955. He stated that he went to the LePage home on three occasions (February 25, March 1 and 4) in an effort to collect the amount of the premium represented by the dishonored check. On each occasion he was unable to find anyone at home and left a note in the door advising that the check had been returned and requested that one of the LePages call him at once. No call was ever received. He stated that he also attempted to telephone the LePage home several times and was unable to find anyone at home.
Records kept by the defendant concerning the policy in question were admitted in evidence. They do not disclose that the premium due on February 5, 1955 was ever paid. The credit entered when the instant check was received from plaintiff was later marked out with the notation 'N.G.ck.' The receipt which had been mailed to plaintiff was not offered in evidence by her but was delivered to the attorney for defendant in open court (upon request) and was admitted in evidence as a defendant's exhibit. The following appears on that receipt: 'Any check or draft received may be handled for collection in accordance with the practice of the collecting bank or banks, and this receipt shall be void if the full amount of such check or draft is not received by the Company.'
In support of her contention that the trial court erred in entering judgment for the defendant, plaintiff says that she made a prima facie case and that the court could not thereafter have directed a verdict for the defendant. We...
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