Bankers Life & Casualty Co. v. Guarantee Reserve Life Insurance
Opinion of the Court
Bankers Life and Casualty Company, an Illinois corporation with its principal office in Chicago, brought this diversity action against Guarantee Reserve Life Insurance Company of Hammond and National Protective Life Insurance Company, Indiana corporations with their principal offices in Hammond, Indiana.
The evidence introduced at the trial, taken in the light most favorable to Bankers, tended to show the following.
Richard M. Seidel is the son-in-law of Ben Jaffe who, with his family, owned a seventy-three per cent interest in Guarantee. During 1957 and 1958, Seidel held stock in Guarantee and was a trustee of other Guarantee stock owned by the members of his family. In October 1957, Seidel became one of the incorporators, a director, and the secretary of National. He became an officer of Guarantee and an employee of both Guarantee and National in January 1958.
Prior to that time, since 1949, Seidel had also been a mailing list dealer or broker in Chicago. In that capacity in 1957 he scheduled mailing lists for Guarantee, substantially at his own discretion. At that time Seidel also shared an office with Rapid Mailing and Advertising Company which was purchased by Guarantee in the latter part of 1957 and moved to Hammond, Indiana.
At the trial Seidel, called as an adverse witness, testified that early in 1957 he
At this point it should be noted that Alan Drey, the vice president in charge of the Chicago office of a New York concern in the mailing list and direct mailing business, also testified that a man who gave the name of Thompson. contacted him sometime around 1957 or 1958 in an effort to rent him “several hundred thousand” IBM-type punch cards with names and addresses on them and which had allegedly been used by an insurance company.
Next, according to Seidel’s testimony, he arranged to have the names on the IBM cards typed onto a list by employees of Rapid Mailing, from which list two sets of labels were prepared. He then destroyed the cards. One set of labels was rented to Guarantee during 1957 at $15 per thousand names for solicitation of insurance by mail. The second set of labels was retained at Rapid Mailing and was delivered to Guarantee when Rapid Mailing was purchased and moved to Hammond, Indiana. These labels were used to solicit insurance for National early in 1958.
During 1956 and 1957, Bankers used a three-part IBM card system for the purpose of notice and collection of premiums, rather than the premium history card system traditionally employed by insurance companies. Under Bankers’ system, two parts of the IBM card were sent to the policyholder, one part to be retained by him and the second part, the “premium notice” card,
In the early part of 1958, after he had taken charge of direct mail solicitations for Guarantee and National (and while Rapid Mailing was in the process of moving to Hammond), Seidel employed Mailers, Inc. of Chicago to handle the mailing of several million pieces of literature. An employee of Mailers, Inc. testified that Guarantee provided his firm with groups of addressed labels together with matching code numbers to identify the mailings. During January and February 1958, Mailers, Inc. either mailed or labeled and delivered to Guarantee and National approximately 1,500,000 envelopes corresponding with code numbers which included the figure “2729.” The invoices covering this work showed that several mailings in varying quantities were actually involved and that the number “2729,” common to this group of mailings, occasionally appeared alone but
Four pieces of mail sent by Mailers, Inc. on behalf of National were introduced into evidence. These solicitations were received by three policyholders of Bankers, who also happened to be either agents or employees of Bankers. The names and addresses on the envelopes contained certain peculiarities or minor errors which corresponded precisely with those contained on the records of Bankers and on premium billings sent by Bankers to the same policyholders. Three of these solicitations bore the code number “H2729S” on the application for insurance contained inside the envelopes; the other bore the code number “H2729Y.”
MacArthur testified that the meeting with Jaffe and Seidel was designed to reach some sort of settlement. He testified that Jaffe told him that he, Jaffe, would have had nothing to do with using the names of Bankers’ policyholders if he had been in town or known about it. MacArthur said that Jaffe assured him that “he would assist me by telling me the name of our employee who had sold the list to his son-in-law.” He quoted Jaffe as stating, “I don’t blame Seidel for not wanting to tell, because you don’t rat on people.” Negotiations for a settlement broke down, however, and MacArthur testified that in a subsequent conversation with Jaffe, the latter said, “Well, it was your junkman who hauls away your waste paper, he is the fellow my son-in-law bought it from.” MacArthur added, “I told him that I was sure that was a cock-in-bull story for the reason that the names, the cards that disappeared, were the cards that we had to store so the insurance examiners could verify our premium income and * * * we had stored them in the room. Somebody had located the missing cards from this room. I told Ben Jaffe that no junk-dealer would have access to the room. * * * ”
MacArthur’s testimony contained the only reference to missing IBM cards by anyone connected with Bankers. MacArthur himself admitted that he had no firsthand knowledge of any of the details, that all his information had come through his subordinates. Other executives of Bankers testified, but they all disavowed any personal knowledge of missing cards. Bart T. Murphy, who was Bankers’ director of data processing during the relevant period, stated that he never found any cards missing. He also testified that that part of the IBM cards no longer needed for maintenance of the company’s filing and record system “was forwarded to Maintenance to be destroyed.”
Based upon the foregoing evidence, the district court found that Guarantee and National “clandestinely” obtained possession of 1,500,000 cards containing the names and addresses of Bankers’ policyholders, which cards were “maintained [by Bankers] * * * to facilitate the sending * * * of renewal notices on its various policies, as well as
In order to properly assess the district court’s conclusion that Guarantee and National unlawfully misappropriated Bankers’ property, it is necessary to recite briefly the claim which the plaintiff asserted. Count one of the complaint was based on an Illinois criminal statute which related to the use of a list or compilation of names obtained from the possession or control of its lawful owner without his consent.
The record discloses that Seidel obtained a number of IBM punch cards which had originally been in Bankers’ files.
Thus we are left with a void as to the history of the cards in question between the time they were in Bankers’ files until they appeared in Seidel’s possession, except for Seidel’s testimony that he bought them from a man named Thompson. MacArthur’s hearsay testimony about “missing” cards, never shown to have been missing by any other evidence, cannot serve as a substitute for proof of the loss and tracing to Seidel of identifiable property to which Bankers had a right to possession. No witnesses were produced to account for the disposition of Bankers’ discarded status cards. We are left to speculate whether those acquired by Seidel were abandoned by Bankers and retrieved by an unknown third person, were swept up by Bankers’ trash collector and salvaged, or were stolen by an employee of Bankers from its files.
The district judge made what we consider an impermissible inference to supply the missing link in Bankers’ chain of evidence. First, the judge concluded, as he might, that Seidel was an unreliable witness who could not be believed and that MacArthur was a credible
Since we are convinced that the district court’s findings essential to liability are clearly erroneous, we do not reach the other troublesome questions relating to damages.
The judgment is reversed.
. National, organized as a wholly owned subsidiary of Guarantee, was merged into Guarantee in 1964.
. Premium notice cards contained the words “premium notice” and “Bankers Life and Casualty Co.” in bold type on their face.
. For example, one invoice showed a mailing of 419,644 under the number “2729,” while another invoice showed a mailing of 61,035 under the designation “H2729G,” and a third invoice showed a mailing of 50,121 under the designation “H2729T.”
. The Mailers, Inc. invoice under the code number “H2729S” shows a mailing of 50,-641 envelopes. No invoice bearing the designation “H2729Y” was introduced.
. The relevant portions of the court’s findings read:
The defendants and their officers and agents clandestinely obtained possession of 1,500,000 of said cards; used the names and addresses contained thereon for solicitation of insurance for their respective companies and then destroyed said cards, all of which was done without the knowledge and consent of the plaintiff. Said conduct on the part of the defendants, their officers and agents, wa§ done with full knowledge of the ownership by plaintiff, and was wilfull, wanton and malicious with the intent to appropriate for their own use said property of the plaintiff.
* * *
[T]he officers and agents of the defendants did conspire with each other and with another person or persons in order to obtain the afore-described cards and the information contained therein for their own use. * * *
Richard Seidel, an officer of each defendant, is a completely unreliable witness and the court cannot believe him; thus there is no dispute or substantial dispute with John MacArthur’s testimony, and the court finds him to be a credible witness. * * *
Richard Seidel was, at all times alleged in the Complaint, the son-in-law and under the control and domination of Ben Jaffe.
* * *
. Relevant parts of this statute, in effect at the time the complaint was filed but since repealed, read:
§ 179a. Any person having or obtaining access * * * to any list, compilation or other collection of * * * names * * * in the possession or control of the lawful owner and used in connection with any lawful business * * * and who * * * shall take possession of any such list * * * or shall make or cause to be made * * * a copy or duplication thereof * * * shall be guilty of a misdemeanor * * *. § 179b. Any person who may * * * ' obtain any such list, compilation or other collection * * * or any copy or duplication of such list * * * or the information contained in any such list * * * and who, without the consent of the lawful owner of any such list * * * and with notice or knowledge of his rights, may * * * make use of or attempt to make use of any such list * * * for his own benefit or advantage * * * shall be guilty of a misdemeanor * * *. § 179c. Any person, who with knowledge or notice of the right of the lawful owner of any such list, compilation or other collection * * * shall aid, abet or incite any other person to do any act specified in section 179a or 179b hereof, shall be guilty of a misdemeanor * * *. [Ill.Laws 1925, pp. 341-342.]
. The conspiracy count will not be discussed except to note that the record contains no evidence which would support a finding of conspiracy among the officers, directors, and agents of the defendant corporations. The district court’s finding of conspiracy appears to have been predicated upon Jaffe’s “domination” of Seidel and the affairs of Guarantee and National. “Domination” of itself is insufficient to show the concerted action and common design essential to a conspiracy.
. If Seidel’s testimony is credited, he acquired 150,000 cards. If his testimony is rejected and the testimony of Alan Drey, who suggested that Thompson had offered “several hundred thousand” cards for sale, is disregarded, the conclusion that Seidel came into possession of 1,500,000 cards containing the names of Bankers’ policyholders can be reached only through a series of tenuous inferences. [Bankers “proved” the number of its policyholders in 1956 and 1957 by offering the testimony of a vice president who stated that Bankers had “about 1,500,000, in round numbers.”] First, the employee of Mailers, Inc. who stated that the code number “2729” represented a single list of names must be credited even though he admittedly had no knowledge of the source of lists provided by Guarantee. Next, the letter prefixes and suffixes must be accepted as merely indicating portions of tlie same list, even though (1) one invoice (one of two identified by the number “2729” without letter prefixes or suffixes and covering a mailing of 419,-644 pieces) affirmatively appeared to contain a complete circularization of all the states; (2) three of the four pieces of mail received by Bankers’ policyholders and introduced into evidence bore the notation “H2729S,” part of a mailing of 50,641; and (3) the fourth item contained a key number not specifically identified by or related to any invoice of Mailers, Inc. Finally, the eight invoices of Mailers, Inc. introduced by Bankers, representing the processing of approximately 1,500,000 envelopes in varying quantities over a two-month period, must be accepted as identifying 1,500,000 different names, each circularized once.
Reference
- Full Case Name
- BANKERS LIFE AND CASUALTY COMPANY, a corporation v. GUARANTEE RESERVE LIFE INSURANCE COMPANY OF HAMMOND, a corporation, and National Protective Life Insurance Co., a corporation
- Cited By
- 1 case
- Status
- Published