*1 HANCOCK MUT. JOHN GAUNT CO. INS. LIFE Docket
No. Appeals, Circuit. Second Court
Circuit 31, 1947. March 16, 1947.
Writ of Certiorari Denied June
See S.Ct. Alcorn, Hodgson Hugh M. John Conn., Hartford, Milton II.
both Conn., appellant. Waterbury, Meyers, of Hartford, Conn., Brown, of Wallace W. appellee. HAND, N. Before L. AUGUSTUS CLARK, Judges. HAND and Circuit HAND, Judge. Circuit L. judgment, appeals The from a complaint after her dismissing a trial to action, brought beneficiary, judge, upon a of life contract to recover life. There are two her son’s first, questions: whether all; son at if shot, so, whether “double indem- event apply. made nity” did which, findings, substance of tailed appeal, material this far One, Kelman, solicitor as follows. applications authorized to take defendant give prospective customers and to from premiums, receipts pre- after for first two Gaunt, insured, liminary interviews with 3d, procured August on subject signed “application,” which is printed This was a document the action. length detail, the much of considerable here passage relevant margin.1 important quote in full satisfied were: “if the completion the date application I B this was insurable or installment in accordance “If Company’s amount and when rules for the above stated this thereof signed, plan applied modification, application was if the Com- for without including application, pany on the date of said is satisfied death, B, is, -completion B of Fart of this *2 coo * * * is, lay the “medical for medical examiner” application and if this approved partment” Company “home office” by at my death, approved to the “home “application.” Nevertheless the applied Office, the its the insurance Home asking Wholey completion wrote office” the 20th to of on be in force as of date the as Gaunt’s classifica- further information the answers said Part Number of B.” of draft; Wholey answered satis- “ap- tion in the the make in the insured was on by a letter alternative; factorily on 24th received it read: the plication” was the 25th; “doc- 26th desired) the on one of the the (Check “Insurance effective: date * n department Policy tors of the medical of Date of B Dated of issue application medical approved” the “from a signed Gaunt When the answers; standpoint.” received office” The “home
he
either
these
had not
of
checked
death, and
day
news
of
Kelman,
on that
Gaunt’s
it to
after he
but
had delivered
finally
“application,”
that,
never
the
Kelman
the
checked the
so
that,
although
judge
if Gaunt
the
found
“application” read,
be insured
Gaunt was to
lived, have
so.
done
policy.
had
of
from the issuance
Kelman
that “Both Gaunt and
found
Waterbury
August
left
Gaunt
on
from
intended
Gaunt
should be covered
or
going
19th. He
to the Pacific Coast
completion
of the
of the
medical
date
of’work;
at
in search
he
arrived
Alaska
examination”;
Kelman’s
and that
check-
21st;
Chicago
the 24th he
on the
and.on
ing
wrong
due
a
of
answer’ “was
to.
Minnesota,
Montevideo,
reached
had
mistake
Gaunt and
part
mutual
on
of
“army
an
bus”’
traveling
seen
n
Kelman.”
upon
of
that had been loaded
a flat car
a
freight
train.
west-bound
“applica-
At
the time
signing
of
Rasch,
occupant
one,
about
of
bus was
this
tion”
Gaunt
the full
except
receipt
nothing was
whom
learned
gave
a
containing
Kelman
fields of
later
traced
the wheat
quoted
just
have
without sub-
we
the 25th.
Wyoming
casual worker. On
change:
“application”
both the
stantial
west
body
Gaunt’s
found beside
upon
receipt
prepared
by
were
such,
Milbank,.
at
railroad
bound track
by
use
solicitors
Dakota,
in his head
South
with a hole
made
day
Kelman. On the
took
same
Kelman
bullet,
38 or
which had!
examining
calibre
Gaunt
defendant's
local
right jaw near
ear
had
entered his
physician
found him
who
insurable under
skull;
top
and al
come out
who
rules and
him for
recommended
no evidence on
acceptance.
contains
Kelman delivered the
the record
“applica-
may
judicial notice
subject,
take
physician the
we
premium,
tion”
substantially
caused
report,
one,
that this must have
favorable
delivered
inside and!
agent
was blood
Wholey,
stant
death.
the defendant’s local
bus,
bullet
found
Waterbury, Connecticut,
and the
prepared
outside the
who
testi
had
On
report
signed
killed him.
recommending acceptance,
inside
Kelman,
judge found that
had been-
mony the
sent
himself and
which he
with the
killed,
said,
which,
thp
have
report
'we
“application”
physician’s
to.
indemnity”’
exception
the “double
office,”
the “home
where the
documents
death.” The
ap- provision covering “accidental
received on the
were
9th. Since it
finding:
asks us to reverse this
peared
plaintiff
papers
that Gaunt
been
erroneous”;
“clearly
i.e.,
find it
“4F”
classified as
because of
draft
Nei
doing so.
not be warranted
eyesight,
depart-
defective
the “medical
should
that Gaunt killed him
contends
side
required
ther
the “home
another
ment” at
office”
Rasch killed him
the issue whether
physical
Waterbury.
self
examination in
This
intentionally;
accidentally
17th;
day
place
same
took
argues that the defendant had
physician
office”
wrote to
“home
local
proof. We
Gaunt;
hold that
“a
again
and on
19th
passing
provides,
B, but,
Office,
Home
applied
insurance shall
in force as
in force
policy.”
completion
issue
the date
said
finding,
completion
true that
it did the
Part B.” It is
even if
justified
evidence
Rasch,
literally,
if the
read
clause as a whole be
apparent
the burden.
dragged
died after
Gaunt,
insured was
covered if he
must
after he had shot
*3
“completion
B,”
“ap
the
before
him beside
of Part
placed
and
but
out of
bus
the
him
fled, obviously
proval”
not have been
track;
to
and indeed he could
he then
that
and
always
because
insurable
reasonable in-
there must
be an
The
escape detection.
most
this,
the
when the
takes
that
interest
effect.2
hoping
insurance
that he
ference is
did
given
meaning
Yet what
be
the
presence
can
to
that his
move on and
train would
completion
words
“as of
date
the
be remem-
not
the
in
bus with Gaunt would
the
The
it,
in
of Part B”
that be true?
de
bered,
although
him
for,
no one saw
“advantages”
suggests
at Monte-
fendant
six possible
one
had talked with
witness
satisfy
the
travelling
insured which will
he was
video and
had learned
* * *
phrase, “the
will
stains
insurance
be
the
It is true that
blood
in. the bus.
force,”
in
(1)
policy
sooner
any event a tell-tale
would
the bus
in
inside
were
(2)
he
have been become
circumstance
must
incontestable.
It would earlier
of which
maturity,
reach
presence
corresponding
a
ac
although
the
with
not
aware —
bullet —but
as
celeration of
surrender.
nothing like
in-
dividends
cash
were
(3)
period
“ap
It
itself would have
would
the
criminating
body
as the
cover
after
proval”
(4)
and before “issue.”
If the in
was
That Rasch should
been where it
shot.
revolver,
sured became
pulled
Gaunt
uninsurable between “com
out his
shot
pletion”
“approval”
it,
then
it
still
merely examining
would
cover
while
(5)
escape
pos-
birthday
risk.
If
implication, while
the
insured’s
was
gone so far
the
to
“completion”
“approval,”
between
sible,
evi-
unlikely. The
the
seems to us most
premium
computed
would
lower
in a trial
at a
might
satisfy
jury
dence
a
not
homicide,
(6)
policy
enough
rate.
When
covers
certainly
to
the
dis
but there was
ability,
coverage
“comple
finding.
dates from
support the affirmative
tion.” An underwriter might so under
question
whether
first
is
context,
stand
phrase, when read in
its
covered
all
was
at
time
his
at
but the
not
was
be submitted
to
party
Curiously,
has in
death.
neither
underwriters;
persons
to
to
it
to
go
was
corporated
B,” and we
the record “Part
in
utterly unacquainted with
niceties of
its “com
do not know what
the date of
insurance,
life
colloqui
who
it
would read
pletion.”
approval
“from a
If it
ally.
understanding
per
It is
standpoint”
“advised
one of
medical
as
;3
sons
counts
not one
a
in hundred
department,”
the doctors of
medical
it
suppose
covered,
would
would
he
“completed”
was not
before Gaunt’s death.
completion
not “as of the
date of
Part
hand
On
found that
B,” promised,
only
but
was,
completion
“Gaunt
time of
approval.
date of
Had that been
B,
accordance with
meant, certainly
what the defendant
it was
company
rules of the
for the
defendant
so;
easy
say
to
it
addition
plan
for,”
applied
amount
and that
make
meant
to
retroactive for
only
understanding
consistent
with
purposes, certainly
easy
some
“completion”
was earlier than the 25th.
persons wholly
too.
demand that
To
argued
has not
con
The defendant
spell
unfamiliar
all
trary and
assume. Thus the
very
language
teeth
out
question becomes
“if
whether the words:
used,
unpardonable.
indeed
does
some
B,
application, including
not
make actual
death, approved
Company,
violence
always
Office,”
“approval”
condition, and to
inescapably
Home
a
sub
be read
must
approval,
precedent upon
prospective
stitute
however in
condition
the immedi
promise:
evitable, when
ately
has died before
following
“the insurance
*
greater
approval. But
force
does
violence to
shall be in
as of the date of
Contracts,
Cir.,
McCoach,
F.2d
Restatement
§§
Griffin v.
Co.,
v. Mutual Life Ins.
Starr
Wash.
rely upon
force”
sions
“in
Insurance
make the insurance
ap
ordinary
Young’s Administrator;6
really does
but it
“approval”;
place, Ho-
In
first
plicant
not touch the
has
his
who
issue.
mans,
physical
pre
passed
agent
exami
successfully
his
insurer’s
who took
has
mium,
apparently
nation,
chance
not authorized
remotest
would
all,
trans
him un
.to
bind the
leaving
understand the
clause
office;
ap
mit
its leisure
the home
covered
the insurer at
until
risk;
general agent,
of those of
proved
he
one
assume
authorized to
coverage
ficers
the insurer had
immediate
whom
getting
*4
Wall,
89,
page
“sign
23
by
premiums.
alterna
for”
money.
is confirmed
This
may,
question;
Young
23
152.
in
twelfth
L.Ed.
Be that as
presented
tives
“effective,”
re
when
had
either
did not die until after
insurance was
issued,
jected
tried to sub
or at the “date of
had
accepted.
B”;
inkling
any other
stitute
he never
of
another which
there was not
inception
Co.
for the
risk.
Northwestern Mutual
Insurance
Life
the v.
de
elsewhere
Neafus7 was
similar
Those
true
in Connecticut
case.
that
point
“ap
insurance is not
writing
scarcely
life
cisions are
in
of
where
business
interest;4
public
yet
plication,”
receipt
in that
say
or the
does not
ex
colored with a
elsewhere,
implication,
state,
pressly,
by
the canon contra
again as
rigorously applied
proferentem
begin
in
coverage
is more
when
'contracts,5
examined;8
in
in
unques
other
are
insurance than
but there
been
recognition
tionably
between the
of the difference
decisions which excuse
insur
parties
acquaintance
in
the sub
The law New York is
their
when it does.9
of
er
ject
man
matter. A
must indeed read what
v.
in doubt. The first
was Hart
Travel
case
charged,
not;
Co.,10
signs,
he is
he does
in favor
ers’
which was
of
Ins.
impose upon
Appeals
but insurers who seek to
Court of
af
which the
speech
significance firmed,
opinion.11
an esoteric
any
common
of
without
craft,
intelligible
must bear
to their
this was
Moreover,
followed
Buono'v.
any resulting
Co.,12
accepted
confusion. We
Prudential
Ins.
few
think
situations
that can
However,
can
these deci
authoritative.
both
in
appropriate
is more
than
such a case
themselves
followed
sions were
soon
as this.
Appellate
Divisions
three others
Departments,13 all of
and Second
Fifst
very
aboard have arisen
close
Situations
way.
It is true that
other
went
infrequently, although the actual words
distinguished
Hart
Travelers’ Ins.
v.
varied,
hardly
necessarily
it is
have
so that
Co.,
applica
supra,14
language
any
quite
on all
fair
decision
sup
Co.,
tion,
Prudential
Ins.
and Buono v.
However,
important question
fours.
estoppel;
ra,12
ground
but with
ap
subsequent
far
condition of
how
hard to see
the de
promise
it is
how
proval
prevail
over
im deference
all
stand,
despite
the affirmance
cisions
coverage
can
as the insured
mediate
soon
has
Co., supra,
Ins.
passed
physi
Hart v. Travelers’
we
premium and has
his
holding
in
be warranted
should not
A number of
deci
examination.
cal
Am.St.Rep.
26;
317,
4 Swentusky
108
Field v.
Insurance
S.W.
v. Prudential
Co.,
45,
526,
77
Co.,
Life Ins.
Utah
Missouri
290
116
siderations"stated un- occur
recovery substantially would stated form of contract
der the second troubled I am
above. somewhat the stress in view
state local law of Ameri-
Swentusky Ins. Co. v. Prudential 686, upon ab-
ca, 165A. 116 Conn. to insurance law. features unique
sence of actually in another connec- But that was. justifies
tion, in not us which think a fact judicial role for that abdicating
here our in Richardson by Judge Frank envisioned Revenue, 2 Internal
v. Commissioner 562, 567, Cir., A.L.R. 126 F.2d dummy” as state “ventriloquist’s law. *6 STATES v.
UNITED BLOCK. 11282.
No. Appeals, Circuit. Ninth
Circuit Court
March
absolutely
2 Making
protec-
providing
distinction between the
ineffectual
my
applica-
indicated
tion
until tbe
judi
text,
accepted.”
I
fear
cannot see
I
as much
81 A.
tion
observe;
division as
L.R.
107 A.L.R.
cial
brothers
far-reaching
pretty
think
York
do
Tbe Now
rule seems
well
cases; Corning
of annotators
settled
the late
statements
with reference
receipt:
Co., supra,
“It
Ins.
to such conditional
uni
Prudential
affirmed
formly
that such an
N.Y.