Telotte v. Metropolitan Life Ins. Co.
| Decision Date | 21 March 1938 |
| Docket Number | 16844 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | TELOTTE v. METROPOLITAN LIFE INS. CO |
Marie Adelaide Baudier, of New Orleans, for appellant.
Spencer Gidire, Phelps & Dunbar and Wood Brown, all of New Orleans for appellee.
Gertrude Telotte, the widow of John Lacoste, seeks to recover the proceeds of a policy of life insurance issued by the defendant company on the life of Lacoste. The policy, by its terms, is payable to the "executor or administrator of the insured," contains a paragraph familiarly known as the "facility of payment clause," and also a provision to the effect that It also contains a further provision reading, as follows: "If the terms of this policy are not satisfactory or if its conditions are not accepted and agreed to, the policy may be surrendered for cancellation (3)5C within two weeks from date hereof; and if so surrendered within said period, the premiums paid hereon will be returned."
In her original petition plaintiff alleged that Lacoste had applied for the policy and that it had been kept in force for more than three years, and that she was entitled to the proceeds. She sued solely as widow, not as administratrix or executrix, and did not allege that she had been named beneficiary. The policy itself, as we have stated, was payable to the "executor or administrator" of the estate of Lacoste, and the defendant, therefore, by exception of no right or cause of action, challenged the right of plaintiff as widow to bring suit for the proceeds. This exception was based on the decision rendered in Toles v. Metropolitan Life Insurance Company, 166 So. 172, in which we held that there is no right of action in any one to claim, as beneficiary, the proceeds of a policy payable to the estate of the assured. The exception was sustained, but plaintiff was granted the right to amend her petition, and to "set forth with certainty whether she is the administratrix, executrix, beneficiary named in the policy, or that she was recognized by a competent probate court (3)5C as sole heir and sending her into possession of the estate of the deceased."
Accordingly, she filed a supplemental petition in which she alleged that she had herself contracted with the insurer for the policy of insurance on the life of her husband, and that the agent had been advised and instructed that she was to be named beneficiary, but that the policy, when issued, was not made payable to her as beneficiary, and that it was couched in such technical language that "it was impossible for the petitioner to determine, without having a knowledge of the said technical language, or of the specific law applicable, that her instructions had not been followed." To this amended petition defendant filed another exception of no right or cause of action, which again was sustained.
From a judgment of dismissal plaintiff has appealed.
We find that in neither of the petitions is there an allegation of fact which could be construed as a charge of fraud on the part of the insurer, or of its agent; and plaintiff, in support of her charge that there was fraud, relies solely on her general allegation or conclusion "that the actions of the said defendant's agent, in not having the policy issued as instructed, coupled with the language in which the said policy is couched, was such as to constitute an action of fraud."
It is difficult indeed to determine whether plaintiff intends to abandon her original allegation to the effect that the deceased had himself applied for the policy and had thus entered into the contract of insurance. It must be remembered that in the petition she alleged that:
If that allegation is true, then we find that a third person, plaintiff, is now attempting to reform and recover under a contract made between two other parties and with which she, by the very terms of the contract, is in no way concerned.
She alleges that her husband entered into the contract; that it was in force for more than three years without complaint; and that it should have been a contract entirely different from what it was finally discovered to be. Surely, if she is to be bound by that allegation, she has not set forth in her supplemental petition a cause of action in herself. If, on the other hand, she now intends to abandon the allegation that the contract was entered into by her husband, then we find that she charges that she herself entered into the contract; that she received the policy, which, on its face, clearly shows that she was not named beneficiary; that she paid premiums for more than three years on the policy without making the slightest protest.
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