*1 562
appellant pleaded guilty, after the case was
transferred from Tennessee Kentucky to provisions
under the Rule of the 20 Procedure,
Rules 18 U.S.C.A. of Criminal
Thereafter, petition he filed 2255 vacation of this sentence under § 28, U.S.C.A., appeals
Tit. and now from a
judgment overruling it. only seemingly meritorious appeal
contention in is that Rule 20 unconstitutional in view of Art. Clause Constitution and the § Kalodner, Judge, dissented. thereto, Sixth Amendment both of which
provide, by jury shall be and that trial
such trial shall be held in State where
the crimes have been committed. These
provisions urged jurisdictional may not be waived. assumed,
While it has been sometimes decided,
though not proceedings had in upon appellant’s
a district court consent and
plea guilty trial in the constitutional
sense, provisions the constitutional venue
have been privileges held to constitute ac- may
corded accused to one of crime and waived, may privileges
be other waived, including trial Only U. Bink, D.C.Or., F.Supp. sup-
S. v. 74
ports appellant’s contention, but that repeatedly disapproved,
case has been Le- S., Cir.,
vine U. 8 182 F.2d cer- denied,
tiorari U.S. 71 S.Ct. Cir., Gallagher, 3 S. v.
L.Ed. U. denied, certiorari
F.2d 283, L.Ed. 659. Precedents are S.Ct. sufficiently cited.
there is affirmed.
Judgment below LIFE HANCOCK MUT. v. JOHN
CROLL INS. CO.
No. 10633. Appeals Court of States
United Third Circuit. April
Argued July 18, 1952.
Decided *2 you Answer told that
“11. Have ever had or been you bad, ‘Yes’ treated or consulted or been physician practitioner or other any following: ‘No’ of the chest, “D. Pain in the shortness Coronary Artery breath, Disease Angina ? No Pectoris Trouble, Stomach Intestinal “F. Appendicitis, Indigestion, Ulcers, Disorder, Gall Bladder or Liver Jaundice, Dysentery No or Hernia? you any X-Ray, elec- “12. Have ever had trocardiographic blood examina- No tions or studies? years, past you, during five “13. Have prac- physician consulted or other titioner, or been confined to or treated dispens- hospital, sanatorium, ary, clinic or institution similar Questions stated in answers to 12? 11 and No ********* pro- certify person "I named as the that I am the posed foregoing Insured, statements that each of the opinion, and answers is a of fact and not statement them, that I have and read each of complete, true all such statements answers correctly recorded. Upper Darby, Pa., “Dated at “Aug. George 13,1948 J. Croll “Signature Proposed Insured. Knowles, Maurer, ap- Philadelphia, Pa., for “Witness: Willard E. M.D.” M. E. pellant. principal The insured’s was the Philadelphia, White, Raeburn Thomas witness; testimony the most was for II, Peace, Wil- H. Ira (William Jewell part buttressed his office records. Scott, liams, White, & Philadel- Williams insured had con- testified appellee. Pa., brief), for phia, on the year him 28 times the five sulted MARIS, KALODNER and STA- Before period prior date written LEY, Judges. Twenty-one plication. visits took these place during months before the 7% Judge.
STALEY, Circuit application signed. Even more im- upon life insurance action portant large This is an than the number of visits is District Court for in the policy commenced on numerous calls the insured the fact that Pennsylvania. On District of complained pains chest and the Eastern other died of insured pain symptoms. Chest January chest accom- coronary as an acute known panied by palpitations on one condition oc- heart these on the defended The insurer physi- occlusion. casions. One of entries misrepresented insured indicates that ground stag- cian’s records insured an- giving minutes, false his health several gered the state unable to application. part of his medical other phy- himself. On visits swers a verdict for directed district sician’s records disclose insured com- $686.28, sum of plained stomach and plaintiff-beneficiary intestinal distress. premiums paid amount representing January interest, and has plus by insured breath, pains and shortness of chest acute appeal. home, taken where summoned morphine. Shortly administered application the latter a written insured, upon thereafter, the advice of He was August on had an physician, taken application con- age. The then Bryn station of the Mawr questions at the alia, following tained, inter very day before Hospital. The answers: 56á plicable
made his insurance
he visited
fully
law of
set
physician.
entry
in the doctor’s
forth
Evans v.
Mutual
Penn.
office records is as follows:
Co. of Phildelphia,
1936, 322 Pa.
“8/12/48.
days
Pain
pains in
133, 139,1
inch—lumbar
back A.
4Yz
where the court declared:
*3
—epigastric
pains
by
and back
are eased
it affirmatively appears,
“Where
from suffi
sitting up straight (not completely eased).”
documentary
cient
evidence,
policy
physician’s
The
records as well as the was issued in reliance on false and fraud
electrocardiogram
statements,
indicate a tentative di- ulent
by
made
or on behalf of
agnosis
coronary
occlusion.
as where false
answers
shown
given by
to have been
under
The issue
us whether
before
is
such circumstances that must
have been
taking
district court was correct in
the case
falsity,
aware of their
may
direct
away
jury.
juris
from the
Since federal
a verdict or
judgment
enter
for
in
diversity
diction
citizenship,
is based on
surer.” See also Freedman v. Mutual Life
apply
Pennsylvania.
we
the law of
The
Ins.
404,
Co. New York, 1941, 342 Pa.
record is unclear as to whether the insur
81,
21 A.2d
Questions prior about medical at believe that decedent at the time he tendance are material to the risk and false application may forgotten have permit policy. an answers avoidance of the pains chest or taken York, Derr v. Mutual Life Ins. New Co. hospital many to his visits 554, 41 351 Pa. A.2d period relatively short parties 1. Both cite case treated insured bursitis asserted he positions. reported (which The insured there an application.) of their was relating questions “no” to swered and for a bronchial inflammation. Oth- surgical per- and health medical treatment. erwise he considered the insured fectly instant none of the Unlike the questions normal. The Court of Pennsylvania related to _ held that the issue of fraud symptoms specific properly jury. disease which was submitted to the nothing In the death. the Evans caused case That concluded that Court in the plaintiff-beneficiary documentary admitted that one of evidence in- revealed that thought insured’s would vertebrae sometimes sured or had reason to think rigid position get spinal out of its that the dislocations he suffered were column, promptly slight temporary indisposi- but that this was re more than by osteopathic tions, reported. stored treatment and mas too trivial to be We sage. In the of one have no that doubt in- Court was testified, death of the who insured was fluenced the fact only age a dislocated applica- caused vertebra. The de when the doctors, called two fendant paths, both osteo tion and suffered from no dis- generally who testified that treated ease illness considered to prior the insured allegedly dislocations to the a serious one. fatal one. A third prop- Court District accordingly the fact Appellant stresses the of time. defendant. erly a verdict directed known may have un uneducated most condition. questions resolved disagree. I keenly however, person, suspecting have been sub- should District Court ’ chest, anyone pains in the aware as mitted to in breath, stomach shortness hold. decisions distress.3 testinal prin- legal these enunciate doing so ; ciples position In an effort sustain prima facie case on for the Plaintiff makes out a one of fraud was pay- of insurance proving the contract the documen jury, contends that *4 premiums to time of death. no ment of the is see tary evidence inadmissible. We policy the then avoid burden point. rec order to the The office merit in doctor’s prove company the to shifts to insurance were well as the ords as representations the in that the both properly admitted into evidence under the knew Act, were false and that Records insured Federal the Business when he made them or otherwise 1732,4 were false and statute.5 C. the § Evans Co., making them. in bad faith in acted Life su See Freedman v. Mutual Ins. Company, v. Penn Mutual Life Insurance 404, 21 A.2d The pra, 342 Pa. at 85-87. 560, 547, 1936,322 Pa. 186A. 133. "Where physician’s are not rendered office records either is a the evidence because, there in merely in in some inadmissible conflict or representations falsity as to the physician may delayed stances, have bad knowledge to the or as transcribing in his long as two weeks as faith of case must submitted to the daily office records notes from to jury”. Burton v. Pacific records. Mut. 1951, 613, Co., 615, 310, 84 A.2d reasons, judgment For the above 312, supplied); (emphasis Adams Met- v. will be affirmed. district ropolitan Company, 1936, Life Insurance 322 Pa. 145. A. KALODNER, Judge (dissent- ing). opinion majority in Since the its did what I to be discuss deem critical evidence premise majority’s position principles apply, to which these it becomes testimony, documentary, that the oral and necessary do to so here. established that the decedent must have operated known of heart condition when he busy gasoline application for signed the and insurance service station. In the conduct of his busi- event, regular any Derr v. See Mutual Life Ins. Co. of New made if in course of 542; York, business, regular 351 Pa. and if it was the course Metropolitan Co., Glaser v. Life Ins. to make such of such business memoran 558; Pa.Super. 261, act, A.2d or dum record at the time such Metropolitan Co., transaction, occurrence, Prevete 1941, Life Ins. with or event or 365, 22 343 Pa. A.2d 691. a reasonable time in thereafter.” 28 U. S.O. 1732. § Metropolitan Co., 3. Adams v. Life Ins. 564, 186 upon 322 Pa. which 5. “Business records. relies, distinguishable. There act, record “A of an condition or event documentary was no in that evidence shall, relevant, competent in so far as bé proving case had made qual- if evidence the custodian or other false and fraudulent statements. identity witness ified testifies to its and preparation, regular the mode of its and if it 4. “Record made in busi- course of regular made ness. course of business any act, at near “In or the time court of the States condition United * *, writing record, event, if, or whether entry court, information, in the form in book or oth an the sources of meth- erwise, preparation a memorandum as or record od and time of were such as any act, transaction, occurrence, justify May 4, its admission.” Act of event, shall be admissible evidence of P.L. No. § 28 Purdon’s act, transaction, occurrence, such Pa.Stat.Annot. 91b. § physical physicians, labor. names of engaged taxing only listed ness he she oil, operation. but he only gasoline He not hemorrhoid testimony sold elic- changed tires. ited lubricated cars and decedent had been treated labor; physical latter involved her kidney considerable a diseased condi- heavy tion jacked-up, automobiles had to be fifteen times month three removed, period prior application, tires tire wheels to be had and a num- de- away replaced. At times ber of other carried times within the preceding required heavy years. However, four cedent was to move drums the instant “ * * * servicing automobile radiators alcohol testified that he physi- ‘persistently for cold The decedent’s concealed weather. the true facts of ” * * engaged throughout cian knew that in these her he was case her illness *.’ tasks,1 testimony, but he cautioned That held, strenuous never Court “ * * * engaging him from that he should refrain it a jury say dangerous them or that were to him. whether requisite or not the bad shown”, He never advised the decedent that was faith was and that in view of it “ * * * jury serious might disease very well con- illness. occasions the clude On several there had been no fraudulent *5 pains by told decedent that distress he any ‘grave, the concealment insured of im- suffering digestive portant was were due to disturb- or serious disease’”. “worry- ances and him against cautioned Likewise in Travellers Insurance Com- period ing”. the of During decedent’s pany Heppenstall Company, 1948, (March May 21, 1948) treatment 27 to the Pa. although electrocar- physician gave injections him a number of diograms diagnosis “possible led to a of cor-
to his stimulate libido. flagging onary” physician the decedent’s did not dis- significant This the evidence as to failure close that fact to him. While decedent had application the to advise decedent of the disclosed in his x-rays that condition; his electrocardiograms his statement to him taken, had been he an- merely suffering response he was from a di- swered “no” in question the to disturbance; gestive the absence warn- to whether he had suffered from “disease of' ing the re- to the decedent to the Supreme Court, heart”. The in de- a taxing physical claratory frain from work and the judgment proceeding instituted stimulate, injections of testosterone to his the company, insurance affirmed ruling the question libido made the the decedent’s of the lower court question of the- good jury. one might faith for It well good the insured’s faith was for the so, doing jury have convinced a that the decedent the Court stated 360 at pages page is, was A.2d at unaware serious illness and 811: “It course, stating that, well good that he in in so in established acted faith in order to avoid a for insurance. the ground on alleged representations, fraudulent the insurer must presented parallel Almost a situation was show, not only that the were statements Metropolitan in Life Insurance Adams v. false, but that the insured knew were Company, supra. There decedent stated in false otherwise acted in 'bad faith in application for insurance her making them”. good; phy- was had had health she no In Burton v. Pacific infirmity or mental defect or and that Mutual Life sical Insur- Company,supra, ance the illness had occurred four months decedent was her last also kept in ignorance of his illness hospital phy- ago, was confined to a when she There, sician. days operated for hem- decedent was for ten the removal of a on In answer to the to for orrhoid. the removal of adenoids and tonsils. by physi- During been attended a operation whether she had course of the the sur- years preceding geon charge five and if growth cian noticed a at the n give tongue the details of illness and the base of which laboratory reports 1. The was one of decedent’s service station customers. any medical or of nor had A series been “disabled or later showed to cancerous. he testimony at the surgical
x-ray
decedent
treatment”. The
given
treatments were
decedent
later,
de-
trial
effect that
nine months. Some
months
was
six
years prior to date
hospital following had for five or six
cedent was taken to the
a verte-
application,
dislocation of
He died of
suffered
hemorrhage
a
throat.
brain,
had
that he
cancer of
bra near
base
the throat.
dislocations-,
similar
thereafter had several
application,
In his
six weeks
about
five
during the
been treated
that he had
entering
hospital,
before
the decedent
various
year period by
doctors
three
good
stated that he
and the
health
dislocations,
cerebral
and that he died of a
only physicians
had consulted
he
appli-
hemorrhage
months after
three
past
five
had been
reference
Supreme Court
for insurance. The
cation
tonsilectomy. Three doctors
had treat-
who
bene-
jury
verdict
decedent’s
affirmed
ed the decedent testified that
had nev-
ficiary, holding,
page