Joseph Beister and Irene Beister v. John Hancock Mutual Life Insurance Company

356 F.2d 634
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 24, 1966
Docket18023
StatusPublished
Cited by19 cases

This text of 356 F.2d 634 (Joseph Beister and Irene Beister v. John Hancock Mutual Life Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joseph Beister and Irene Beister v. John Hancock Mutual Life Insurance Company, 356 F.2d 634 (8th Cir. 1966).

Opinions

GIBSON, Circuit Judge.

Appellants, Joseph Beister and Irene Beister, are the parents of Eugene Beis-ter and the beneficiaries of an insurance policy issued by the defendant John Hancock Mutual Life Insurance Company (referred to hereafter as defendant or company) on the life of Eugene Beister. Complaint to collect the proceeds of the insurance policy was filed in the District Court of Nebraska in the amended amount of $10,000 and reasonable attorney’s fees. Diversity of citizenship with the requisite amount establishes jurisdiction. The case was originally tried before a jury but at the conclusion of the evidence, the parties waived a jury and submitted the issues to the Court. The Court found in favor of the defendant on the ground: (1) that under the interpretation of the conditional receipt and the application for insurance there was no contractual liability on the part of the defendant; and (2) that, although the insurance company was negligent in unreasonably failing to notify the applicant (Eugene Beister) that the policy was ready for delivery, the defendant’s negligence was not the proximate cause of any loss, because the plaintiffs failed to show that the applicant Eugene Beister was financially able to pay or would have paid the balance of premium due upon notification to him of the availability of the policy.1

Most of the essential facts are not in dispute but there remains some ambiguity in the time sequence of the essen[636]*636tial events concerned after the approval of the application, and the issuance of the policy, as regards the failure to advise applicant and the failure to tender the policy to applicant before the applicant’s death.

Eugene Beister on September 14, 1960 made application for an insurance policy in the amount of $10,000 with the defendant and paid as a deposit on the premium the amount of $28.40. The application was taken by Harry R. Meister, an agent of the defendant, and a friend of applicant and his family. Eugene Beis-ter lived both at Hastings, Nebraska, which was the base of his employment operations, and then at his parent’s home at Omaha, Nebraska, where he usually spent every other weekend. After taking the first application for the insurance and noting the premium payment of $28.40, which represented one month’s premium at age 26, the agent recommended to Beister that he predate the policy, presumably in order to obtain the premium rate at age 25 instead of 26. Beister accepted the recommendation of the agent and thereupon the agent prepared a new application form, discarding the old form, and then received the check from Beister in the amount of $28.40 without noting on the application form or the conditional receipt whether this was to be a part payment, a semi-annual, or a monthly payment. The agent informed Beister that when the policy arrived he would contact him.

The issuance of insurance was conditioned upon the approval of the risk by the home office of defendant. The home office required a complete physical examination, to which Beister submitted, and then later required a urinalysis, which requirement Beister also met. The application was approved on October 31, 1960 by the home office and Policy No. 7363667 was issued by the defendant and sent to its Omaha office for delivery and collection of the balance of a semi-annual premium due thereon in the amount of $134.10. The record does not disclose the exact date on which this policy reached the Omaha office but presumably it was about the 3rd of November, it having been mailed on November 1, 1960. Under the company’s practice any policy issued would be placed in the agent’s box at the Omaha office and the agent was then supposed to contact the person who had contracted for the insurance. If the agent did not pick up the policy, usually within a week, the policy ordinarily would be mailed to the agent for delivery to the applicant. In this case the record is not clear whether the agent picked up the policy from the Omaha office or received the same through the mail. The agent’s only recollection was that the policy came into his hands in the latter part of November or the first part of December.2

The agent knew that the applicant’s work entailed out-of-town travel over the east end of the state of Nebraska and that the applicant was stationed at Hastings [637]*637and frequently came to visit his parents on weekends at Omaha. The agent attempted on two different occasions to reach the applicant at his parent’s home by telephoning him at that place. The agent, however, made no attempt to reach the applicant by mail either in Hastings or at his listed address in Omaha. When he did call at the Omaha address, he did not make any statement about the policy or leave any word or message concerning the policy with whomever he talked because the agent felt that the application and issuance of the policy was a personal matter for the insured and apparently should be treated confidentially. In other words, no message was left that the policy had been issued and was available for delivery at that time. The record shows that the applicant tried to get in touch with the agent several times in regard to the policy but the dates of such attempts are indefinite, so that it cannot be said from the record that the applicant contacted the agent after the agent had the policy in his possession. But, agent did recall applicant’s visiting him at his home “on one or two different occasions” but did not remember the exact time.3

Applicant, while riding as a passenger in his own car, was killed on December 14, 1960, his 26th birthday. The car apparently ran into a tree; no other car was involved in the accident. The agent after learning of Beister’s death returned the policy to his Omaha office. Several weeks after the funeral, the parents discovered a conditional receipt issued by the defendant for the $28.40 initial deposit made in reference to the application for insurance.

The policy that was issued was predated to June 13,1960, in accordance with the request made in the application. Predating is permissible in Nebraska up to a maximum of six months under the statutes of that State.4 Subsequently, demand for payment of the policy was duly made, and after refusal, complaint was filed.

The insurance company’s defense was that the applicant was fully informed of the fact that the semi-annual premium for the policy was $162.50 and that the total premium had to be paid before delivery to him of the policy and within sixty days from its effective date. The agent testi- • fied that he had no authority to deliver the policy without collecting the premium.5 The plaintiffs insist that the conditional receipt is ambiguous and is subject to the interpretation that the applicant had sixty days within which to pay the balance of the premium due after the policy had been approved; that it was not approved until about November 1, 1960 and that the applicant’s death occurred within the sixty-day period mentioned in the conditional receipt. Plaintiffs also seek recovery on the ground that since defendant did not tender the policy or make any effort to collect the balance of the premium due on the policy the defendant is liable and should not be heard to claim (1) that the contract had lapsed prior to the death of the applicant, or (2) that the policy was never in force by reason of the failure of any of the conditions set out in the instruments forming part of the contract of insurance.

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Bluebook (online)
356 F.2d 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-beister-and-irene-beister-v-john-hancock-mutual-life-insurance-ca8-1966.