Twiggs v. National Old Line Ins. Co.

Decision Date17 April 1979
Docket NumberNo. 40037,40037
Citation581 S.W.2d 877
PartiesMarcella TWIGGS, etc., Appellant, v. NATIONAL OLD LINE INSURANCE CO., and Gravois Home Savings and Loan Association, Respondents.
CourtMissouri Court of Appeals

Kurt D. Breeze, Pannell, Dodson & Robinson, Festus, for appellant.

Benson Cytron, House Springs, Edwin L. Noel, St. Louis, for respondents.

REINHARD, Presiding Judge.

Plaintiff appeals from the Circuit Court's order granting defendants' Motion for a Directed Verdict at the close of plaintiff's case. Plaintiff contends that she adduced sufficient evidence to warrant submitting her case to the jury, and that the trial court erred in directing the verdicts.

At issue, as represented by plaintiff's petition, was the existence of a mortgage life insurance policy payable to defendant Gravois Home Savings and Loan Association (Gravois) on the death of Tommie Liskey (plaintiff's husband) in the amount of any outstanding balance on the mortgage. Tommie Liskey died and plaintiff sought collection of the policy proceeds to pay off the mortgage. She was informed that no policy had ever been issued to cover her husband. She then instigated the present action. The trial presented the following facts:

In March of 1971, plaintiff and her husband learned of a home for sale in Pevely, Missouri. The house was owned by the Gray family, distant relatives of plaintiff, who were in arrears on their loan payments. Gravois held the Deed of Trust on the home. Hopeful of acquiring the house, plaintiff and her husband went to Gravois' office to discuss terms. Once there, they were met by a Mr. Burnstill, Gravois' loan officer, who handled the transaction's particulars.

The "particulars" were these: 1.) Plaintiff and her husband were to bring the Gray's arrearages up to date; 2.) Plaintiff and her husband were then to become owners subject to the deed of trust but were not to be held primarily responsible on the note. Therefore, i. e., Gravois' only cause of action in the case a deficiency, would be against the former owners and not plaintiff or her husband; 3.) All monthly installments were to be first credited toward the accrued interest on the loan and thereafter applied in reduction of principal; 4.) Plaintiffs were (and the testimony is discordant on this issue) to obtain mortgage life insurance on plaintiff's husband's life from National Old Line Insurance Company (National) naming Gravois as beneficiary. Title was taken in the names of plaintiff and her husband as tenants by the entirety. Grays arrearages were paid and plaintiff's husband executed the application for insurance.

Plaintiff's husband, Mr. Liskey, was not a well man. He suffered from a number of physical disorders (stroke, heart trouble, gall bladder removed, etc.) and was unable to work. He received Total Disability Social Security. Plaintiff, on the other hand, was gainfully employed and handled most of the couple's financial transactions, including making the payments on their home. Plaintiff made these payments, totalling $69.60 per month, of which $9.60 per month reflected payment for the insurance. Plaintiff testified that neither she nor Mr. Liskey were ever informed that the application for insurance was denied although a letter from National to that effect was sent to them on April 5, 1971, according to officials of defendants. Apparently, the reason they were never so informed was because their address, as listed on the insurance application, was incorrect.

In any event, plaintiff, allegedly unaware that no insurance policy was in effect, dutifully continued making these payments of $69.60 every month for almost two years. Her husband died on January 15, 1973, and plaintiff sought recovery on the non-existent policy. It was then that plaintiff alleges she first learned (from Mr. Burnstill) no policy had ever been issued. Mr. Burnstill's attempt at reparation consisted of either refunding the $9.60 per month she had paid in advance, or, crediting these payments to the mortgage, thereby relieving her of mortgage payments for the succeeding four months. Plaintiff declined this offer and, on the advice of her attorney, continued making the mortgage payments.

As reflected in the couple's statement of Account, their total payments were credited first towards the interest and then towards the principal of the loan. Their account was twice debited in the amounts of $23.67 and $25.70 for insurance payments made to National. Mr. Burnstill testified that these payments were made in error, which error was not discovered until after Mr. Liskey's death.

Plaintiff presses a different theory on appeal than that which she urged at trial. In the trial court she alleged and attempted to prove that defendants, misrepresented to plaintiff that her husband's life was insured by the mortgage life insurance policy they sought to obtain. 1 Plaintiff now contends that the misrepresentation was not the existence of the policy, but the necessity of obtaining a policy before the sale of the home could be completed. 2

In order to develop a submissible case of fraud in the trial court below, plaintiff must have established,

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) (her) reliance on its truth; (8) (her) right to rely thereon; and (9) (her) consequent and proximate injury, and the failure to establish any one of these essential elements is fatal to recovery. Gonseth v. K & K Oil Co., 439 S.W.2d 18 (Mo.App.1969) at page 25.

As plaintiff herself testified...

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8 cases
  • Wion v. Carl I. Brown & Co.
    • United States
    • Missouri Court of Appeals
    • May 14, 1991
    ...rests, however, came before the jury without objection with the effect of averments, pleaded and proven. Twiggs v. National Old Line Ins. Co., 581 S.W.2d 877, 880 (Mo.App.1979). Rule 55.33(b). At the trial, on the motion for judgment notwithstanding the verdict, the Wions argued the suffici......
  • Terre Du Lac Property Owners' Ass'n v. Wideman, 45888
    • United States
    • Missouri Court of Appeals
    • July 19, 1983
    ...made repeated objections to questions in this area, which demonstrates that there was no implied consent. Twiggs v. National Old Line Ins. Co., 581 S.W.2d 877, 881 (Mo.App.1979). Finally, granting leave to amend the pleadings is a matter within the discretion of the court. Decisions on this......
  • State ex rel. Ashcroft v. Marketing Unlimited of America, Inc.
    • United States
    • Missouri Court of Appeals
    • January 27, 1981
    ...its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. Twiggs v. National Old Line Insurance Co., 581 S.W.2d 877, 880 (Mo.App.1979).6 N.J.Stat.Ann. Sect. 56:8-2 (Supp.1980) provides in part that:"The act, use or employment by any person of a......
  • Guess v. Lorenz
    • United States
    • Missouri Court of Appeals
    • February 10, 1981
    ...483, 488(2-5) (Mo. banc 1966). The failure to establish any one of these elements is fatal to recovery. Twiggs v. National Old Line Insurance Co., 581 S.W.2d 877, 880(1) (Mo.App.1979). Even assuming arguendo that appellant's statements were representations of fact and not mere expressions o......
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