Security Life Ins. Co. v. Seeber, 4262.

• Decision Date: 03 July 1930
• Docket Number: No. 4262.,4262.
• Citation: 41 F.2d 600
• Parties: SECURITY LIFE INS. CO. v. SEEBER.
• Court: U.S. Court of Appeals — Seventh Circuit

41 F.2d 600 (1930)

SECURITY LIFE INS. CO. v. SEEBER.

No. 4262.

Circuit Court of Appeals, Seventh Circuit.

July 3, 1930.

Arthur S. Lytton, of Chicago, Ill., for appellant.

Edmund Burke, of Springfield, Ill., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

This appeal is from a judgment in favor of plaintiff-appellee on a policy on the life of her deceased husband, William P. Seeber. There was a motion by defendant for a directed verdict.

The questions are: (1) Was the quarterly premium due August 15, 1925, paid within the 31 days of grace; (2) if not, and the policy lapsed, was it reinstated; (3) was the testimony of the actuary, construing the policy, properly admitted; (4) was there error in the instructions?

The evidence as to the payment of the premium is as follows:

For plaintiff: Seeber's former stenographer, testifying in 1928, solely from recollection, said that between 5 and 5:10 p. m., September 14, 1925, at Benton, Ill., she mailed Seeber's check of that date to defendant, in Chicago, in an addressed envelope furnished by defendant; that she knew Defendant's Exhibit 10 was not the envelope in which Seeber's check was sent, because either she or Seeber always wrote his return address on such envelopes. Exhibit 10 shows no return address. The letter, in due course, if so mailed, would have arrived at defendant's office on the morning of September 15th, within the days of grace.

For defendant: Defendant's cashier testified that her duties and practice, as cashier, for 15 years had been to receive the mail from the carrier, open it, and place the receiving date stamp on the inclosed letter or premium notice, but, if there was no letter or notice, she placed the stamp upon the envelope; that when there was a question about the regularity of the payment, she kept the envelope pinned to the notice or letter. She had no independent recollection, but from those facts she identified the envelope, Exhibit 10, post-marked "Benton, Ill. Sep. 16 8 AM 1925," as the envelope containing the Seeber check and the premium notice, theretofore sent him by defendant, showing the receiving date, September 17, 1925, stamped thereon by her. Defendant's Exhibit 9, defendant's letter to Seeber dated September 19, 1925, acknowledged the receipt of the check, and stated it was returned because it came too late. The letter said, in part: "That we may accept your remittance, it is necessary that the policy be reinstated." Reinstatement application blank was inclosed. Seeber, under date of September 25th, filled out and returned to defendant the signed application for reinstatement, defendant's letter of the 19th, and his check of the 14th.

There are three other facts, also undisputed, that seem to us to show conclusively that the stenographer's recollection, after three years, was at fault, viz.: (1) Within five days after the first mailing of the check, defendant told Seeber that his policy was lapsed because the premium had been received too late; (2) within a week thereafter, Seeber filled out the application blank, sent him by defendant, requesting reinstatement, and therein stating that his policy had lapsed; (3) having the matter thus early and clearly brought to his notice, he did not then, or at any time thereafter, make any claim or contention that the check was mailed in time, or that the policy was not properly lapsed.

On the question of payment, the weight of the evidence is so overwhelmingly against the plaintiff, that we are of opinion that there should have been an instructed verdict on that point. Chicago, M. & St. P. Ry. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 70 L. Ed. 1041.

But it is claimed that Seeber's check was subsequently cashed by defendant and that the policy was thereby ratified. The facts are that after defendant received Seeber's check, dated September 14th, defendant, in its letter dated September 19th, sent that check back to Seeber and told him that the check had come to defendant too late, and that his policy had lapsed. He was also sent a blank application for reinstatement of the policy, and was told that there were two requirements for reinstatement, namely, that he must pay the premium, and show insurability; that he might pay the...