*1 project, work on continued trict knowl- full appellants, with in 1938the paid developments,11 street edge of the assessments remainder full the time that at property; against their completed.12 had been all work of the trial aas has found Court The District been that there had of law conclusion abandonment to abandon. no intention its con justifies supports record
clusion.
Affirmed. INS. CO. OF AMERICA
PRUDENTIAL v. SAXE.
SAXE v. SAME. 7824, 7825. Nos. Appeals Court of States
United District of Columbia. 25, Decided Jan. 1943. May 3,
Writ of Certiorari Denied 1943. L.Ed. _.
See 63 S.Ct. by February, completed grading Wisconsin Ave- From 44th Street Streets, completed prior nue, 1932; to October 1937. Ave- 44th Street: Street Western Jenifer From surfacing completed grading Fessenden and Harrison nue, Between prior Streets, .August surfaced sometime Janu- 1935. ary 30,-1936. Street: Jenifer Street, 44th 45th Street: Avenue to From Wisconsin graded From Harrison Street Ave- in 1931. Western and surfaced Court District found that nue. The Street: Harrison completed property In the 44th work was 1935. line west of Street From graded here, appear, Avenue, this street sur- record Wisconsin graded opened until October faced 1932. Admittedly completed been 1937. Street: Garrison prior February 12, 1940. Ave- 44th Street Wisconsin From begun grading surfacing Street: nue, October Jenifer Avenue, From 44th Street to Western 29, 1935. September, graded and surfaced Garrison Street: *3 comply “conditions feet for failure to ; did, (2) if it was avoided precedent” applica- misrepresentations claimed
tion; (3) there no waiver premiums, right acceptance to avoid assert, notice claimants after Prudential grounds for avoidance. errors, upon procedural also relies asserted evi- exclusion of including admission and *4 trial cause for dence, consolidation previous equity in with own suit refusal and the court’s policy, cancel relating try equitable issues so-called submitting separately before to cancellation jury. For at case for trial law a stated, no error in reasons to be there was refusing or in consolidating the causes turn try equitable first. We issues affecting issues therefore to substantive liability, stating evi- the insurer’s first relating to them. dence Washington I. insured came to he re- Previously of 1934. had fall City, with in New York sided his mother Drury, Mr. Arthur P. with Messrs. whom he was an a teacher in where architect and Minor, Benjamin Lynham, and S. M. University. did Columbia His firm also John C., Powell, Washington, all E. D. some work in Boston. He lived in Wash- John were on the brief, appellant for in No. 7824. ington January from 1934until his death on 30, 1938, age thirty-nine. He Friedman, Mr. Maurice with whom Mr. May, Friedman, Saxe in 1936. He was married Harry Washington, both D. Jane though employed, previously and G, not then brief, appellant for was on the in No. later he worked for the Government. For 7825. earnings supported his some months wife’s Sidney Smith, Washington, Mr. D. V. applied Partly this reason he them. for G, appellee in each case. November, policy issued STEPHENS, EDGERTON, and Before following wife December. Elis was the RUTLEDGE, Associate beneficiary. paid premiums She Justices. sole his death. until RUTLEDGE, Associate Justice. him in physician found examining a a сontest on three-cornered This is Both before health. excellent insurance, involving in- life policy of afterward, fall of until the issued in- surer, and the wife the mother and, very active life a he led sured, wife His Alexander T. Saxe. in ath- Jane interest unusual age, had an of his Ross, ben- Saxe, original Mrs. was the now of 1935 baseball seasons In the letics. on the judgment eficiary and recovered average, games two pitched, on an he remarried a trial. She policy after teams. There for Government a week a after Saxe’s death. year and half about thorough years he “had intervened, Saxe, mother, T. Gertrude His always he had been told examinations them, by half proceeds, or claiming March, 1937, splendid condition.” In inwas shortly changes, before alleged headaches, virtue occipital have severe began beneficiary. death, making her her son’s September consulted following and the company hereafter called insurance playing stop him to advised physician who liability insurer, contests or the Prudential high pressure. blood because of baseball ap- and the claimant. It mother either October, went influenza Fie contracted peal. during which his few weeks for a Florida swollen, on return- attempted became whether Apart from abdomen Washington entered Garfield Hos- beneficially effective, the changes ing Pope, Dr. of this condition. arise the insurer’s con- because prinсipal pital issues testified to these who (1) physician never took ef- the resident tentions pathologist patient’s history, hospital, stated he With facts from the Dr. Pope performed dying autopsy was then condition. with the find- ings, brief, pericarditis; a heart with However, for more than month. he lived fatty granular liver with moderate de- He and his was visited his wife both generation hepatitis; congestion diagnosed with mother, separate latter times. The splenitis; kidney diagnosed as Washington from New York come to nephrosclerosis marked inter- them in remained visit November. She (hardening stitial malignant fibrosis op- here posed. her death. until son’s She hypertension). From his observation of up- marriage, frequently his patient, autopsy findings, general it, braided him for while in home. even experience, Pope’s opinion Dr. was that the January against physicians’ On and advice insured “malignant hypertension, died of being required sign after a nephrosclerosis, with poisoning, uremic pericarditis responsibility, the mother re- waiver * * connected to the hospital the insured from the to an moved apartment, In judgment his best the condition had days where he died eleven later. year, possibly existed for “a less.” Be- period During that she excluded wife *5 shown, cause of importance, later to be apartment. taking from Before the. him Pope we mention now that found no Dr. hospital signature from secured she evidence of duodenal in the ulcer illness or paper purporting to ficiary to make her bene- autopsy, of the results nor so far as half re- of the insurance. After the appears was evidence of such affliction death, day moval or and within a two of his found Dr. Hulburt. he signed making another her bene- sole ficiary. change Neither was foregoing endorsed on II. The statement is facts .of policy, which remained in the wife’s background setting made as for forth the possession. more crucial and controverted ones relat- directly ing to the issues affecting the al- presents record conflicting evidence misrepresentations. leged These consisted as to the cause of death. The death official questions application. in answers to in the gives certificate nephritis, it as chronic a They fall generally groups, (1) two disease, kidney years’ ten of duration. Dr. having physicians denials of consulted for Hulburt, it, signed who attended the insured years having three and of ever been ain during days last eleven of his illness. hospital observation, diagnosis, rest or signed statement,” “physician’s He also treatment; (2) denials of or of part proofs as loss, of the mother’s of stat- having afflictions, had certain or diseases ing glom- the immediate cause chronic as specifically including pres- abnormal blood years” erulonephritis of “at least 10 exist- sure, disease, dizziness, kidney duod'enal ul- ence, pericarditis acute with of three weeks’ answers, cer, quеstions, etc. with the contributing Pope, duration as cause. Dr. the margin.1 set forth in are physician Hospital resident at Garfield there, while the insured was assigns testified he The insurer each these an- desperately man during “a ill the en- separately ground relief, swers con- time,” tire opinion suffering witness’ tending were false and for that reason malignant hypertension. attach, This he de- policy did not or were both the and material to false scribed “a condition which the acceptance, .serious risk or its * ** pressure very high blood ally usu- to avoid the so as insurance. The evidence * * *, a fatal condition somewhat, accom- concerning the answers differs panied by degeneration arteries, of the they may in the main but gether, be treated to- * * * heart, kidney or brain alleged falsity failure since the of the n * * * progressive proposition statements, and be- both as existence of very comes rapidly.” worse worse hospitalization disease and as to and con- particulars normal blood tended pital, sanitarium, below.) observation, diagnosis, (Answer) No. “9A “7A Have “6D Have Have (Answer) including you consulted, you physician pressure? you ever had ever been No. other treatment rest or treatment? institution (If other or been * * [*] in a yes, practi- space hos- give ab- at- cers No. No. Dizziness —loss of consciousness dates, complaints, tioner ers’ (Answer) “10A No). (Answer) names during Have Disease of No. Gastric or duodenal ul- you No.” past ever addresses. doctors’ or three kidneys (Answer) had — years? (Answer practition- (Answer) Give Yes pain entirely after disappearing single episode abdominal sultation, out of a grows regime” atropine addition “to the This to mention. failed insured —no The dis- 15-30, bleeding time. spent days, January fifteen Appel- charge note Hospital summarizes results in Boston. in Beth Israel examination, physical point repeating the succes- focal correctly says this “the lee including negative findings, in- sion the ab- alleged by the misrepresentations domen, urine, stool, Wasserman, Kahn and evi- because That is true surer.” ulcer, suspicion of with- Hinton. Because of the physicians the insured consulted dence Xrays taken abdomen. had been period had had the diseases the crucial these, together in- The results Beth Israel denied is from the derived diagnosis, stated cident, exception that Dr. single follows: death as assigned cause Hulburt “X-rays: G. I. a duodenal series showed years’ ten duration. kidney disease of cap appeared regular which and showed narrowing junction leading facts con- some It remains to state the incident, cerning portion. failure of the second There were same calcified it, mesentary possibly the manner in which due calcified insured disclose shadows opposite brought light, glands and the communi- the third lumbar vertebrae cation the insurer. There on the left. There were also some indefi- оf the facts to lying pelvis “in” dispute that the insured was the nite dense shadows over possibly hospital kidney But there is a the left be due two weeks. purpose square gall renal stones. Plain clash the reason films of the consequences being their for bladder showed no stones. there Re-examination evidence, liability. negative. B. insurer’s of the K. U. was *6 conflict, are crucial for the issues both days stay “Cl. Course: After a 16 in the misrepresentations alleged concerning the hospital, patient maintained a normal and their effects and also for the claimed thruout, T P and R the B. P. on admission waiver. gradually and then came down 150/90 sippy regime On one powders hand is Prudential’s evidence On a with 130/85. hospital atropine, that the insured patient’s symptoms entered the and and all the dis- appeared presented entirely remained there two weeks. It he symptom-free and was hospital’s showing history records during stay hospital. the entire in the Dis- admission, on report charged physical with orders follow a fourth * * examination, progress report, stage gastric *, a diet results to remain at X-ray films, note, discharge a home lavatory with B privileges a C and diagnosis weeks, of duodenal ulcer. for two after which time he is to see Dr. Fine. history chronic stomach mentions Edward Budnitz years, following eighteen trouble meals “Admitted: soda; by bicarbonate of relieved at once 1/16/34 “Discharged: dizziness, faintness, episodes of two 1/30/34 Improved “Condition: material, vomiting in of black the later “Diagnoses: Duodenal Ulcer case streaked with blood and followed L. “H. Naterman” black One of these occurred six stools. years, testified, Prudential, the other week before admission. one Fine under Dr. prevented Neither attack the insured from deposition procedure. He said his tentative “continuing ulcer; his activities.” bleeding diagnosis was duodenal suffering was in fact from that Saxe duo- giving report Without details the denal ulcer. He stated there was no evi- physical general examination confirms glomerulonephritis any dence other essentially negative.” conclusion: E. is “P. kidney kind disease when the insured layman reading nega- A succession was at Beth Israel. On cross-examination impression findings gets tive that index, he admitted the insured’s icteric patient nothing had more than stomach- admission, which was 17.5 on was incon- ache, perhaps attack, a severe though the diagnosis sistent with the of duodenal ulcer. report says his “abdominal discomfort enough pain.” never Hausheer, severe to be called Prudential’s Dr. assistant med- “impression” director, It concludes with X-ray ical said Beth Israel examining physician, “Bleeding Dr. Fine: “indicate that there is films a stricture be- * * * cap peptic January On ulcer.” another re- the duodenal tween follow- * * * port gives temperature, pulse ing narrowing, there is a res- that in piration week; interpreted all my opinion, as normal at for a that bе times as ulcer, hospital wedding party had the he that had been on a former scar former * * fairness, his Boston and partners *. In temporarily healed business Fine, surgeon Dr. get different for whom say you I I could should think house; drinks that, taking building that he had some opinions regarding party drinking the on this he was not a history the record of in the case and him; his justified in man that hospital one would be the drinks had affected I think companions take did not think he diagnosis of duodenal should concluding that the in that the train back New York condi- ulcer was correct.” Boston, tion and as he had no residence out This for Prudential evidence makes suggested go Fine that he to the Beth Dr. hospitalization, genuine a case of Hospital, where Fine was Dr. evidence would the absence of other give staff. Insured said that the insured then had to establish sufficient missing him an his excuse for classes ulcer, notwithstanding the ob- duodenal University he had a Columbia where record the records and the testi- vious weakness mony, apart years missing of not in the he classes Fine’s, support Dr. faculty been on the and that Dr. Fine had including records’ ad- diagnosis, agreed fix record that would up make inconsistency with it in some re- mitted really he were He it look as if sick. also spects. stayed hospital said that at the for two ap- evidence for There is medical he was interested in weeks because a nurse pellee flatly diagnosis contradicts there and that he conducted his Bоston given in the the basis the details hospital business from the architectural hospital the insured’s records well stay. during room experience. subsequent and medical health forth, set But before other the insurer “He told his wife inform entirely gives will be an dif- stated which if failure to of this and find out dis- ferent version of the Israel incident. close it had effect is, short, effect this was not policy. night His wife that called on the hospitalization, really but was genuine Moore, agent the insurer’s who Mr. up purposes, to cover fictitious for two told him them what her sold lapse” the insured alleged “social husband said. Mr. Moore told Jane *7 party wedding by overdrinking aat caused was that matter one which his Saxe thereby explain excuse his absence and Brine, superior, would Mr. have to handle classes, at the time to from and same his appointment arranged he and her doing he was as an complete the work day. Brine for the next Mr. with Jane house he Dr. Fine on was architect for family, Mrs. friend of the and an old Saxe Boston, building in then Kavanagh, on Mr. How- called Blanche J. Superintendent of Brine, Washington matter of the Beth Israel This version ard insurer, December 1937. light as a result of Gertrude Saxe’s on. came to Jane her son make Brine all that the insured force or induce efforts to told Mr. Saxe December, beneficiary, prior hospitalization and his her told her about his had January, appears in the evidence continue to whether should and asked she testimony of Saxe and her from she policy on the premiums pay Jane friend, Kavanagh, concerning a con- Mrs. money so. Mr. Brine to do have borrow his wife the insured and between Kavanagh versation how also Mrs. her and asked night of December Hospital the at Garfield the insured and what they had known long between led to an interview they 1937. This during the time had been health his Brine, Prudential’s Mr. Saxe and They they told him that known him. Jane representative, which is im- Washington he since came to Wash- insured had known Appellee’s waiver portant on the issue. his health had and that been ington in 1934 in her behalf the evidence brief summarizes Brine told them that the in- Mr. good. respects as follows: in these pass would not a man for doctor surer’s good he $10,000 health, unless were 29, 1937, told of insurance December the insured “On * * * hospital be in a that a man that his mother had wife his brought reasons which would not Beth Israel incident to his for number that the failure to dis- forgotten and he had to include affect mind and that hospitalization would policy. Beth Israel for the He close the it on his and that Saxe nothing her that there been not affect told also Jane premiums. paying This Hospital continue wrong him at the Beth Israel should with by corroborated Mrs. he week-end when entered conversation but that on the by testified that also notation made Saxe different men Kavanagh. several Jane general physical the insured’s that her asked examination was Brine about Mr. negative. tоld him that the she and abdominal examination then condition Hospital that and showed no was in Garfield tenderness. There were no insured ** * going die. history he was masses thought from the he * * * normal, * * * stools had become On that admitted “Mr. Brine Jane * * * admittance physi- admitting on him Kavanagh had called and Mrs. Saxe negative cian said examination was ex- any- December, but denied that * * * cept pallor patient’s Beth Israel about the said thing had been temperature, pulse respiration and have re- on cross-ex- He admitted hospitalization. ** * mained normal at all times. forgotten might have that he amination that cap appeared regular duodenal and showed Mr. Moore ad- part conversation. of the narrowing junction some at its with telephone call of Saxe mitted the Jane portion second is not indicative of night that had made preceding and —which this, They duodenal ulcer. went on which Brine but appointment with Mr. denied except nothing revealed a re-examination been said about anything had kidney bladder, which done hospitalization. negative, my feeling, speaking money from her borrowed Saxe “Jane ulcer, operator duodenal is that if between paid premiums sister three machine, X-rayman if the had been sus- the death of the interview time of this picious repeated all he would have that. accepted pay- appellant these insured. * * * Now, any gastric did not do recеipts for them.” formal issued ments analysis and, my opinion, a man who is insured’s disclosure for the The occasion suspected ago maybe having week some ap- matter to wife of the Beth bleeding, ulcer, duodenal testimony Mrs. Kava- pears her presence whose stool examination shows no his mother had “been nagh’s he said even the most minute blood chemical change my day to insur- hounding allme test, gastric and whose series threatening, if he to her” and ance over fluorscope negative, say you is I have episode the Beth Israel not, disclose did tilcer, proved that man had not an and I testify about the nurse to down bring and it, way, especially other can’t see to defeat wife’s order presumably in repeated physical his * * normal examination Kavanagh present recovery. Mrs. * thing in and there is another and confirms both conversations Jane physical which examination does record on concerning testimony them all Saxe’s ulcer, bear out an a careful including respects, those denied material deep re- eye-ground examination. That was evidence There Brine. Mr. * * * (Italics sup- examination. tinal plied.) as architect work all insured carried *8 hospital, in the period he was during the the he his wife reason he told and that Pope’s that the of Dr. view the results application incident in the the not disclosed was, examinations, they as Israel were instance, forgotten thаt he in one records, hospital in the could not stated sustain the it, thought “because he hadn’t another, ulcer, duodenal diagnosis of and important.” one, the did not fact show insured have sustaining appel- support already from other facts The derives medical apparent good Boston incident is of stated: insured’s health lee’s version testimony, Pope’s and in Dr. largely before and after went found both hos- inconsistency participation the Beth pital between and his active athletics points which he diagnosis through out. and records summer over four through later; made X-ray years were the absence films evidence of That is the series. chemi- gastrointestinal in the medical such an ulcer examination medium, opaque insurance, such as passage autopsy, of an cal and the for as- bismuth, death; that can be watched signed barium or the fact causes that the testified, Pope fluoroscope. Dr. for him in found excellent examiner health and laboratory data did appellee, that as first-class him a risk classed a little less ulcer, diagnosis of duodenal years diagnosis; sustain two after the Boston than members though very staff were finally correct in tentative nature gave He suspecting it on as admission. rea- Dr. Hausheer’s conclusion that duodenal places in found, “at numerous record though sons could have been ulcer “tern- first, healed,” that under the application re- porаrily concession quired fact,, secured on should be statements true in opinions” to be “different regardless Israel records. the Beth insured’s and, apparently, intent of whether prove the strongly to things go All these material; second, under the that the ulcer, and to duodenal insured did not have statements either were made intent opposite conclusion. contradict Dr. Fine’s materially accept- to deceive or affected the appel- interested, in the sense that He was assumed, ance of the risk hazard so episode, if Beth Israel lee’s version policy as to make the voidable under Sec- professional true, question his called in (1940). tion D.C.Code 35— interested ethics. Hausheer also was Dr. by position. He went as far virtue pertinent That section is argu- to both employer’s de- honestly in his he could ments. It falsity any is: “The of a statement very fense, was not far. Dr. though that application policy of insur- appellee, testifying for Pope, though ance right recovery shall not bar interest. not disclosed thereunder such unless false statement was made with intent deceive or unless it the medical evidence this con- With materially acceptance either the affected appellee’sversion of the nature dition the risk hazard assumed the com- stay purpose of the insured’s admission and pany.” (Italics supplied.) verity Israel takes on a it would at Beth hospital not have if the reсords and the argument III. that the did testimony strongly supported more medical uponi take effect rests following account Taking the insurer’s version. of provision application: hereby “I behalf, in her all the evidence we cannot declare that all the statements and answers incredible, inherently regard it questions above complete are improper submission to that reason jury. the true, agree and I that the foregoing, to- gether declaration, with this as well as the statements and answers made or to be made result is that the evidence is Company’s Medical Examiner conflict, only squarely in but substan * * * shall constitute so, hospitali Beth Israel tially whether the part and become a of the contract of in- genuine fictitious. This af zation hereby applied surance that the for. I agree further nearly every issue in the case. fects On applied herein for shall be theory hospitalization, of real is a side accepted subject to the privileges pro- observation, diagnosis treatment, contained, visions therein unless affliction, by diagnosis backed of serious premium paid by the full first me at the ulcer, duodenal and evidence that it existed application, making time of the policy legally sufficient to submit to the shall not take until issued effect not, by scintilla, though more than a that it Company and received by me and the full death or existed the cause of when premium thereon is paid, while my first theоry death occurred. On the other is a habits, health, occupation and any other recuperation from overindul most fact, conditions material risk, to tire alcohol, gence in without other than tem represented by statements in applied^ perhaps porary if somewhat ef abnormal therein„ tion, remain same as described fects; or, importance of even less for in ” * ** *9 (Italics supplied.) surance, purely hospitalization fictitious purposes ap sole supplying premium Since full first parently genuine actually false medi paid applica at the time making illness, cal record for use as an excuse tion, Prudential this clause made the insists classes, failure for the insured’s meet his to truth of pre the statements “conditions time and at the same to secure freedom risk,” attaching cedent to of the and that from them and other work in order to they were not fulfilled because the state complete his task for Dr. Fine. were not true in In ments fact. view light In the of this fundamental evi- it would be immaterial whether the insured conflict, dentiary we turn major to they contrary knew were to fact or in says The insurer deceive, issues. the statements under the to they tended them or whether (1) false and therefore acceptance. v/ere material to the risk or its of the the policy entirely terms never An innocent misstatement, wheth effect; (2) if did operative, took become material, keep er or not policy would by the insurer. argued, it was voidable is taking This, from effect. substance, in
25 make the statements warranties.2 It the cancer when he answered did case, nullify therefore, also would have intended effect of it. notwithstand- section, very dictum, ing support Section 35—414. That at the Pruden- lends least, prevent position. intended to innocent and tial’s dis- The other cases are misrepresentations immaterial appli tinguishable, by in the the absence of a statute insurance, cation its similar to avoiding Section 35—414 on the facts. or by escaped effect be cannot the device of IV. To under the avoid contracting contrary labelling or statute the statements must be both false and made with intent to deceive or material attempt contractual to do “condition this a precedent” attaching of the risk.3 acceptance, possibly to the risk or its unless very purpose nullify of the section was to materiality both intent to deceive and are provisions contrary contractual to its terms required falsity, in addition to a matter and effect. If therefore the so-called “con which need not in be decided case. precedent” by dition is its terms more false, Whether is statement made with broadly allows, effective than the statute statutory deceitful intent or material that extent it is invalid.4 may questions fact, sense of law of phase In this the insurer re case depending on the circumstanсes. Pruden upon lies Mutual Trust Life Ins. Co. v. tial insists the answers in this case were Ossen, 317; 2 Cir., 1935, 77 F.2d Silver Ap false and material a matter of law. Co., 1935, man v. New York Life Insurance says pellee properly ques issues were App.D.C. 29, 154; 65 Kaplan F.2d 79 v. fact, court, by tions of so treated Co., 1939, Manhattan Life Insurance 71 her legally resolved in favor on sufficient App.D.C. 250, 463; 109 F.2d New York evidence. Life Wertheimer, Insurance Co. v. D.C. The short answer which 1920, 730; be made N.D.Ohio 272 Benzinger F. v. pre- Co., insurer is that Prudential on evidence Insurance 317 Pa. falsity 176 sented the of all the answers appears A. 922. The Ossen case question fact support view, and the has resolved contrary, Prudential’s we think, instance, issue explicit legally this ficient each terms suf- intent of the in the evidence, against statute. it. This ruling would he basis our Silverman case was on the broad that the verdict has agent that an basis had no determined, authority appellee’s in accordance with paying extend the time for it, premium, supporting first contention and the evidence pre which was a condition matter, policy’s including cedent that the entire ords, the rec- taking effect, and is hospitalization clearly distinguishable therefore fictitious, genuine; consequently hardly facts. It payment need be noted that premium hospitalization neither not covered there was nor con- Section applicable 35—414. Nor was section physicians and attendance sultation with- dictum, the Kaplan A meaning Questions that сase. in the 6D and 9A. case, verdict, view, which cites the Ossen case in this determined that The the susceptible interpretation appel was not credible that existed, support, lant’s but the cause was specified reversed diseases had had, because the trial court excluded evidence knew or believed mis- insured knowledge, things any respect. that the insured had no when he On this stated these application, view, made the of the existence was false, none answers 2 Co., 1933, We are aware of the technical differ 190 251 suranco Minn. 239. representa ence between warranties 685. Contra: Mutual Trust N.W. precedent. Ossen, Cir., 1935, tions 2 conditions See Life Ins. v. Co. Rugg, J., 317, 320; Metropolitan in Everson v. Barker v. General Fire & F.2d Corp., 1909, Co., 1905, Life Assurance Mass. Life Insurance Mass. *10 169, 658, Lopardi Williston, 660; 945; 88 N.E. 3 Con 74 N.E. v. John Hancock (1936) 673; Vance, Co., tracts Insurance Mutual Life Insurance 1935 289 § (1930) 492, 706; Metropolitan 115. 194 § Mass. N.E. 3 See, e.g., Howle, 1900, Mutual Insurance Insurance Co. v. 62 Life Co. Life 1922, 234, 908; Mandelbaum, 204, 207 v. Ala. 92 St. 56 N.E. Prahm Ohio v. 440, Co., 649; 1923, So. 29 A.L.R. v. Prudential Insurance Salts Pruden 99 N. Mo.App. Co., 1909, 288, 752. tial 140 122 A. Insurance J.L. 4 Stephens Metropolitan 714; Lynch 120 Prudential v. Life Insurance S.W. v. ., Co., 1910, Mo.App. 461, Mo.App. Insurance 190 Co 170 S. 145; In- Schmidt v. Prudential S.W. W. without, least at doubt- readings avoid- the is for disclosed. is ground there no legally suf- was ful whether this evidence ing the under the statute. falsity. finding But' ficient a of to sustain If, sweeping however, view of the a less not, clearly sufficient whether so or it was taken, so it is not verdict’s effect that is one, has contrary the sustain the verdict Beth determining that the considered as insurer, question against the the decided to the hospitalization fictitious was Israel setting it aside. no for and there is basis up Dr. the records were made extent Fine entirely in foundation without kidney dis- Question inquired 10A about treatment, case is diagnosis or the actual consciousness, and ease, of dizziness—loss much on the better for insurer ulcers, ulcer. gastric in duodenal addition to falsity the exist- concerning of the answers show, in relation The Israel records Beth Up- specific or ence of diseases afflictions. consciousness,” two “dizziness—loss of evidence, including all medical on Weakness, faintness, of “sudden attacks records, falsity each Beth years material,” six of black one vomiting before admission which lasted fact, question was ex- these answers “but a few cept instances in which to be noted and he felt hours after which recovered finding the evidence would not sustain usual,” before admission the other a week insurer; legally was sufficient evi- there patient, by train New route when the en finding dence to the insured was sustain York, “began experience hot cold and questions specified, never afflicted prior all and seemed to shake sweats head illness; application to the or last very feel began He soon over inside. has resolved issues in these everything seemed to weak faint and appellee’s favor. stated, history sway also him.” before dizzy day ad- “He somewhat before prove, felt Thus, the insurer did In substance all this evidence satisfaction, mission.” shows, jury’s that insured ever that value, at face or taken twice had duodenal ulcer. evidence con- nearly years, in ten three last times cerning clearly this has been stated and nearly years was three before the answer finding, implicit verdict, sustains tbe - made, weak the insured felt and faint and affliction, the insured never had this that either in fact dizzy. There no somewhat was belief, to his fainting of consciousness. The of question or loss or, he the answer when made mat- couples “dizziness—loss con- ter afterward. together. means, If this as it sciousness” may thing The same be said concerning may, losing to the extent “dizziness denials of specific each the other afflic- consciousness,” no there is evidence it ever tion, except that in some instances the evi- existed, was not false as a answer dence not sufficient to sustain a find- matter of law. If means dizziness with- Thus, only that it had ing existed. evi- fainting, we think it should be out ruled pressure” dence to show “abnormal blood was that the insured’s blood law the answers were a matter pressure risk, nor were material to false (systolic elevated 150/90 160/110 of evidence to show absence that these diastolic) days on two first occasional, infrequent long-past spells Israel. The evidence showed it could not present the mind of the insured long previously, been elevated have fell Sоmething when answered. more than day, second and remained 135/100 spells dizzy or three scattered over ten two „at 135/85, for a man of normal of required years to avoid insur- should build, age during insured’s re- falsity materiality But if the ance. this evidence days. maining fifteen It was 135/98-92 regarded are to be as issues policy, he was examined for which when fact, again the verdict has settled them first said was than nor- the examiner mal, less appellee. in favor of only “slightly then elevated.” Dr. gave malignant the cause Pope of death as kidney only evidence the insured had pressure “in the blood hypertension, was in the prior disease very judgment high,” his best physician’s and the death certificate official only year, possibly existed illness less. loss, proofs of with the both statement filed signed by Dr. Hulburt. This would seem mean “Abnormal” some- nephritis chronic death temporary rise, cause of than a this, thing more years’ ten least days glomerulonephritis two greater than *11 diagnosis This evidence and years. duration. There is no evi- period several
' ways. many Dr. contradicted knew were 'what insured ever dence nephritis with- vigor year or until no evidence of the last life Krause found year developed, the in- kidney in that disease when he examined his fatal affliction Prudential, slowly, rapid months be- first irresistible sured fourteen then with for Whether, therefore, alleged there progress. fore Dr. Fine testified his death. when glomerulonephritis separately distinct was evidence of аfflictions are viewed as no Pope collectively Dr. con- at Beth Israel. illnesses or as insured factors was hardening condition, of the nephrosclerosis, tributing single general found a illness, in his kidney, present but last case for insurer the medical malignant hardly convincing. anyAt it was view the hypertension, of death was was rate cause rapidly progressing weight condi- sufficient overcome the not proof a year’s appellee. more than a duration. tion The mere statement of favor of the evidence shows this Questions 9A The 6D and answers to concerning this sufficiently that issue problems. The different present somewhat jury. for the The evidence answer was a hos- having former denied “ever been in clearly finding was sufficient to sustain sanitarium, pital, or other institution for had, believed that he insured never or treatment,” observation, rest diagnosis, application. had, kidney prior disease (Italics supplied) and the latter con- physicians within or been attended sulted summary charged In the insurer years. three insured, application, prior to his that said, As been if the believed that has ulcer, abnormal blood had had duodenal wholly hospitalization the Beth Israel was consciousness, pressure, dizziness—loss of fictitious, hospital records, including the disease, deny his answers kidney and that could find these answers were not false false. To ing existence were avoid their case, In there fact. that was real hos- misrepresentation, for material observation, pitalization, diagnosis, “for answers, the insurer these account of treatment,” rest insured did not proving or more had the burden consult, by physicians. nor he attended was required showing he them false had against this But, questions if the are taken so proof clearly the disease. The had narrowly, regarded and the verdict is not it as all these illnesses afflic really deciding there were no ex- weight clear of the evidence tions. The showed the insured never consultations, or actual medical aminations duodenal false the sense answers were of be- kidney ulcer, he not have did contrary ing to fact. The “in” insured was very illness, until his last con disease hospital, two weeks. the therefore for There were after the siderable time On issued. Whether, misstatements fact. matters, the insurer the other best view, they give grounds would on avoiding prove dizzy was to two or three could do policy under Section spells, accompanied by vomiting, 35— and ele depend they on whether were made days pressure after vated for two the years blood deceive, intent material to the people go through last New ten one. acceptance, possibly risk or its whether more illness than this. medical without to the in- were false whole, evidence, weighed viewed as sured. appellee. heavily insurer’s case up alleged to tie was intended existing afflictions The evidence was sufficiеnt to sus previously in 1934at Beth Israel finding tain there was no intent to de general collapse insured’s four Apart proof ceive. from the the insured years later, presumably progressive as a had none of the afflictions Prudential latter, of the former evolution into not claimed, in his found statements he contradicting withstanding the facts that forgotten the Beth Israel matter or years three than he more four importance considered it of no when he activities, continued athletic his strenuous questions. answered the These statements passed an “excellent risk” inconsistent, necessarily are if it is be examiner fourteen months medical before Israel, said, he to Beth lieved went as he died, really ill, there is he no evidence ill not because was up but to cover symptoms lapse.” ness or Beth time “social the sort of episode spring preceding thing one would better mention to the ex occipital headaches layman, his death when be as to aminer ance, law and insur side, easily other gan. the evidence On fail to call the incident appellee strongly supported or, came, regard the view entirely mind if it enjoyed the insured unusual health to insurance. irrelevant insured’s dis- *12 request that she see have wife a’nd that would been end applica- closure to his the tion, of omis- the effect the and is- company the about the would not have been came, Again purely speculative. not from sued. on the insurance this is sion insured, intentional or assumes the fear consciousness of had he mentioned or Israel, concealment, more, a but as result of Beth fraudulent would have done that no is, the hounding “drinking him to make her would not his have disclosed the mother’s episode” threatening to ma'ke trouble version beneficiary the incident. It is hard- of ly the Beth Israel affair. to be ruled a wife over the as matter of that law vigorous fully coupled company, insurance about things These with informed matter, activities, stop as investigation disclosed such a its health and athletic by would evidence, early diagnosis appellee’s sight mere make Israel, attempt to fall of further investigate Beth tbe to when he was at whether only signed ap- challenge the facts its when he answered and disclosed to not verity blank, case for correctness but were Nor plication made a substántial its true. were not was to jury that the misstatements that effect offered. deceive, against argument as that to made intent answer was material law acceptance from which the risk as a matter of evidence for the insurer contrary assumes, first, only have inferred. a half-dis- been therefore insured, he closure of the facts that All that the insured goes to also show more, nothing had been to Beth falsely did not make statements by itself, half-investigation namely, of or'a that at the fact time of hospital’s diag- point the nosis, recоrds to the ¡known application. must have While he short, nothing In Pruden- more. Israel, it does follow had been at not assumes case on the evidence tial its own mind, or that he present this was here, hospitalization genuine, that the intentionally spoke falsely, knowingly or correct, genuine records were when he the answers. This raises the made representing the and bona actual results of to be false question a statement whether examinations, diagnosis fide meaning must be made within the statute’s with consciousness that it is genuine assumptions, and correct. so so. If all the proved false, are far as have been not requires is the answers be made statute that highly speculative, ground and afford no fide, espe- reasonable bona would seem as seeks, ruling the insurer such a as cially requirement that there view material, either to these two answers were deceive, question whether intent be these risk, acceptance of as a or to the risk jury. was for were false answers law. matter of false, as matter were not The statements of contrary law, merely being except in the sense Nor, reason, the same was it fact. evidence, exclude the tendered error to was either not the statements Prudential claims applicable cir false, but were both not were material specu equally of this case or cumstances acceptance of the risk and hazard re assumptions underlying lative as assumed, a matter of law. As it turns ruling matter Evi quest law. out, they not material to the hazard were companies generally, that insurance dence proved Prudential has assumed. usually, finding declines risks on inquired about con of the afflictions disclosing diagnosis of hospital record loss. Nor has it shown that tributed to the genuine ulcer record duodenal assumes hospitalization or affected consultations nothing diagnosis, with disclosed or any way. A mis risk the loss in verity of either. discovered challenge the hazard as be material to statement to companies to de practice of insurance A way in some have be shown sumed must does under such circumstances risks cline loss, it or contributed affected prove they do so tend to prove or manner. a substantial diagnosis is they have notice the when speculative now than Nor more correct. genuine be either may not materially affected whether the answers question whether therefore says The insurer acceptance of the risk. accept material to the law; the answers and when the a matter of they did, as was, again risk on the evidence rule, ance it tendered evi- so to court refused fact for the an issue presented, determine, officials show by one of own dence has resolved and the verdict records, hospital if known it had appellee. ulcer, favor also of duodenal diagnosis containing
29
out,
examinаtions,
treatment,
diag-
as it was the
final
insurer has
made
ulcer,
required
emphasizes
nosis
policy,
to
of duodenal
etc.
It
do to avoid the
especially
diag-
false
in
was
the failure
the
of the answers
the
to disclose
nosis,
was
though
deceive or
the evidence
not show
and made with intent
does
to
difficulty
ac-
the
material either
or to its
insured ever knew of it. The
to the risk
case,
ceptance.
jury
the evidence in this
has found
On
this now is
fact,
questions of
has
Beth
episode
just
these were
was
what the
appellee,
has
found them for the
and
done insured
it was. The insurer assumes
said
legally
were,
on
so
sufficient evidence.
it
were as
contended
facts
verdict,
notwithstanding the
and on that
V.
evidence also shows
in-
argument
inadequate
builds the
disclos-
any grounds may
surer waived
it
have had
ure.
avoiding
for
insurance after
notice of
existence. The disclosure
their
However,
if
disregarded,
the verdict
is
conversation,
was in the
above,
related
be-
fact,
the insurer was informed
to
Brine,
tween
Saxe
at which
and Mr.
Jane
hospitali
time
place
and
Beth Israel
Kavanagli
present.
Mrs.
Brine said
zation,
seriously
and that
the insured was
subject
it
confined to the
of changing
expected
ill and
to die.
Saxe disclosed
Jane
beneficiary
and the mother’s efforts to
do,
inquired
the matter
what
ob
and
bring this about. The
women
two
testified viously because
did not wish to throw
she
positively it
also included the
Israel good money
bad.
after
There
nowas
time
hospitalization and what
the insured had
delay though
it
turned out there was
told
wife
Their
about it.
version must ample
investigation,
time
if the insurer
accepted
They
now as true.
also told
promptly.
authority,
had acted
It
in
Brine
in
hospital
insured was
policy,
put
enough
do this.
It had
thought
die,
going
and
he was
and that
hospital’s
it on notice the
records
or
money
Saxe would
to borrow
have
Jane
pay
attending physicians would disclose the true
premiums
shortly
then and
to be-
stay
cause
the insured’s
or some other
come due.
the faith
On
of his assurance
it
accept
which
wish
as conclusive
company’s
pass
that the
doctor would not
investigate further.
The disclosure was
$10,000
good
a man
health,
he were
unless
in
complete, in view of the verdict.
It was
affected,
the policy was not
and adequate,
reference
without
it.
Hul
Cf.
payments,
she should continue the
Co.,
Jane bert
Life &
v. National
Accident Ins.
Saxe borrowed
her
sister what was
1933,
La.App.
extremity
151
87. The
So.
paid
premiums,
needed and
three
for No-
position
respect
the insurer’s
in this
vember,
January.
December and
The con-
relies,
two cases on which it
shown
versation with Brine was on December 30. Bennecke v. Connecticut
Life Ins.
Mutual
The insured died a
pay-
month later. The
990,
1882,
355,
Co.,
26
and
105
L.Ed.
U.S.
interim,
ments were made in the
January
on
1877,
Wolff,
Ins.
v.
Globe Mutual Life
Co.
3 and 18.
95
24 L.Ed.
both of
U.S.
insured was dead without the insurer’s
In
of these
view
circumstances
alleged
waiver took
when
company clearly
waived
grounds may
Co.,
Life
place.
v. United States
Ins.
Cable
have had to avoid the policy on account of
clearly
also
F.
dis
Cir.,
alleged
misstatement about
the Beth
tinguishable
the facts.
on
strenuously
urges
Israel matter.
there
waiver, first,
was no
because Brine did not
Brine
authorized to solicit risks and
authority
have
to waive
forfeitures
premiums. He
one of two
collect
modify
any way; second,
be
charge
superintendents
separate
cause
disclosure was
anot
full one. We
contiguous
and
terri-
Washington offices
dispose
the latter
first.
districts,
including parts
of Vir-
tories
Maryland.
In substance
He
general
Saxe told Brine
had a
ginia
what
Jane
license, supervised employees
her husband had told
agent’s
her about
the inci-
office,
That
repeated.
ap-
dent.
need
agents
not be
work of
says
them, though
insurer
this was not
full
parently
selected
the home
disclosure
insignificant
because
told
power
“an
retained the
“hire and fire.”
office
hospital
accept
reject applications
incident
somewhere
ox-
He did
insured’s
past which
to no
amounted
more
risks. He submitted controversies
pass
than a
”
put
lapse’
policies
acceptance
‘social
payments
this did not
or about
Brine
company
premiums
notice
“the
to the home office. He re-
actual
facts”
“previous
it,
including
history,”
medical
collections to
or saw that this was
mitted
short,
superior,
empowering him
In
local
done,
accounted for them.
many
to act for it in so
matters beneficial
company”
nearly
insurance
“the
was as
itself, yet
provision
by such a
disclaim
Washington region
anyone
*14
escape
responsibility
conducting
his action when
all
policyholders
dealing with
“one-way street”
adverse
itself.
to
Such
here.
its business
condemned,
ap-
agency
in
in
words
authority
re
to
specific
Brine
here; in
v.
facts
Saucier
propriate to the
so, the
did
premiums.
ceive the
money
When
1938,
Casualty
Co.,
181 Miss.
Ins.
Life &
He
company’s hands.
the
was in
887,
851, 852:
179 So.
behalf,
authority
receive, on its
also had
the
need not
“The waiver of
limitation
concerning pol
complaints and information
by
may
by
company,
fact
be
in
be
the
them,
relating
controversies
icies or
authority
agent
act for the
an
company
who has
imposed
transmit
explicitly
them
duty
purposes
locality for
in his
all
re
for settlement. He
the home office
contract,
with the
who is
connected
alter
So far as
here.
information
ceived such
locality,
in
company
his
ego
shows,
it to
he did not forward
the record
principle
the rule is
on the
and that
based
have received the
He
New York.
its
company
make
local
cannot
ap
home
subject to the
office’s
premiums
through which all the
agent the medium
any
investigation
event.
or in
proval after
policy
from the insured
flow
benefits
company
stood
he and
Instead both
it,
deny
authority
repre
then
to
sent when
nearly a month and until the loss>
idle for
it
of the insured
benefits
are.
Then,
it, the
avoid
insurer
in order to
fell.
7
involved.”
could have
be
it
done
did
should
what
provision,
applied to
if
the full extent
forehand.
terms,
deprive all agents
o
f
its
waiver
constituted
as a
facts
These
waiver, except that
power
to make a
says
Prudential
there could
law.5
matter of
principal
officers mentioned could
provisions
ap-
in the
because
be no waiver
so,
writing
he made it in
endorsed on
do
if
prohibited
expressly
policy
plication and the
Conceivably
policy.
this
limitation
any
waiving
forfeiture. The
Brine
applications,
might be valid in some
where
nothing,
adds
in
provision
im
formal waiver or modification of an
policy.
in
case,
clause
provision
it
portant term
is:
latter
be involved
self would
circum
“Modifications,
condition, pro-
etc.—No
different
from those here
stances were
Policy
privilege
can be
vision or
presented.
any
by
except
case
or modified
waived
But it need not be decided whether the
by
signed
the Presi-
an
hereon
endorsement
clause
valid as to contractual waivers
President,
Secretary,
dent,
a Vice
promissory representations,
such,
as
Actuary,
Actuary,
Associate
an As-
by
agent
made
an officer
otherwise than
Actuary
Secretary or an Assistant
sistant
For,
by
policy.
endorsement
in this
*
**
Company.
Agent
No
has
case, the waiver
need
be based on
Company
make or
power in behalf
effect,
representations, in
Brine’s
company
tions,
any
modify
contract of in-
this or
other
upon
examina-
relied
its medical
surance,
paying
to extend the time
affected,
be
would not
forfeiture,
toor
to waive
premium,
pay
premi-
should continue to
Saxe
Jane
ums.
any promise,
by making
Company
bind
assumed, though
can be
we
It
do not
representa-
receiving any
by making or
decide, that
were not
these
effective
information.”
tion or
technical waivers
the contractual or
sense,
provision itself is one which promissory
"binding
or in that of
* * *
may
Furthermore,
be
Company
making
waived.6
can be
give
words,
can
an representation”;
insurer
whether an
other
Brine’s
questioned
had,
may
authority
promise
disregarded
extensive as Brine
assurance
agent
business,
charge of
local
the waiver.
affecting
him in
without
placing
6
5
Rumpel,
Ins.
v.
Life
Co.
Life Ins.
Phoenix Mutual
Federal
Co.
6
See
v.
194-196,
Cir., 1939,
120;
Raddin,
Vance,
120
F.2d
U.S.
102
Insur
644;
(1930)
30 L.Ed.
Bowles v.
ance
478.
7 S.Ct.
7
Vance,
(1930)
& Accident As
Benefit Health
Insurance
437.
Mutual
Cf.
Cir., 1938,
sociation,
99 F.2d
119
A.L.R.
But
make it effective the
promptly
municate it
principal,
company
is,
regarded
must be
notice
office,
charged
home
it became
matter,
of the Beth Israel
that notice of
grounds
the existence of the
purpose
knowledge must be
When,
con
addition,
Brine’s
forfeiture.
received
sidered as notice
premiums
to it.
should be so the
and allowed the
to rest
mattеr
held, regardless
provision
that he
nearly month,
had for
and until the
loss
*
**
power
Company
fallen,
“to bind the
doing
returning
without
them or
**
*
accepting any
information.”
matter,
Na anything further
about
Grady, 1923,
tional Life Ins.
Co. v.
N.C. waiver
effectually completed.
We have
*15
348,
289;
New York
purposely put
117 S.E.
cf.
Life
narrowly,
the matter
thus
572,
Eggleston, 1878,
Co. v.
Ins.
U.S.
because on
necessary
these facts it is not
to
577, 24
legally
L.Ed.
If this were
decide whether
in-
receipt
Brine’s
of the
effective,
way
more,
there would
no
in which
premiums,
formation and the
without
company
acquire
knowledge
could
or be would have been sufficient as a waiver.
given notice
policy
facts adverse to its interest.
merely provided
Had the
a rea-
only way
period
such facts could be made sonable
in which he could communi-
legally
by
against
effective
it would be
en cate with the home office
it
in-
could
policy by
vestigate
matter,
dorsement of waiver on the
and decide the
if
done,
of the
to do
things
officers authorized
this. Until
these
been
ques-
another
done,
presented,
should be
it could not be
tion
though
re
would be
in that
garded in
knowing
law as even
of the
litigation probably
mat case the
would have
ter. Such a result
be absurd on
its been avoided.
corporation may,
face. While
within
says
The insurer
it was error to
limits,
authority
bound the
of officers and admit
concerning
the con
contracts,
agents
repre
to make
waivers or
versation between the insured аnd his wife
on December 29 and
sentations,
promissory
fact,
whether
or of
her
between
and Brine
entirely
it cannot disable itself
to receive
day,
grounds
the next
on the
that the form
information or
affecting
notice of facts
principally
er
self-serving
consisted
interests,
depriving
all agents
clause
by
declarations
the insured and the entire
attempts
power
such
to do. Otherwise
hearsay,
conversation was
made out of the
incorporeal being,
it would become
not presence
representative
of a
of the insurer.
“invisible,
only
intangible, existing only in
rightly
think
We
the court
admitted
law,”
contemplation
but one*
showing
up
evidence as
led
what
legally
deaf
blind as well. There is
by
visit
Kavanagh
Saxe and Mrs.
to
Jane
legal
such
creature.
no
Brine’s office
go
and the reason for their
ing.
necessary
It was
also to show that
In this case Brine was not without
had made a full disclosure of the
to
facts
authority to receive information on the
complains
Brine. Prudential also
that the
company’s behalf. He was authorized to
permit
court would not
it to cross-examine
complaints
forward
and controversies con
Kavanagh
Saxe and Mrs.
concerning
Jane
what was said
cerning
policies
affecting
matters
to the former’s conversation
duty
home office.
It was his
to do this.
Brine,
but the record shows
limi
failed,
When he
it was
breach
of his
only
tation was
with reference to what was
company,
duty
to
and at the sаme time
concerning
change
said
in beneficiary.
duty
of its
to the insured and to the bene
ruling
obviously right
court’s
was
ficiary. Under the circumstances in which
phase
the conversation did not
knowledge
communicated,
was
the in
affect the insurer’s case.
was no
There
act,
surer owed them the obligation to
to
respects.
in either
error
of these
promptly,
so
such
do
a manner as not
security,
them into false
lull
so
to
that the
It
VI.
remains to consider the al
any opportuni
fall
loss would
and foreclose
leged procedural errors. There
ty
further
establish,
secure
action to
pre
to
consolidating
error in
the causes for trial
rights.
settle their
serve or
If
try
more
refusing
equitable
so-called
done,
needed than was
the insurer
separately
should issues
and before proceeding
have informed the insured
repre
trial
with the
at law. The insurer’s suit to
sentative what was.
It cannot now
shift cancel the
was filed
day
before
appellee’s
shoulders the burden of
instituted her
Brine’s
Saxe
suit to recover on
Jane
duty
itself,
breach of
or of its own duty
policy,
in which Gertrude Saxe inter
Consequently
to the insured.
when
grounds
Brine vened. The
asserted for cancella
received the
and failed to com-
were the same as
upon
tion
those relied
claim,
any advantage
the fense or
nor of
suit
recover
defense in the
exception
protect.
was created
confer or
same.
policy.
parties
purpose
simply
give
to Its
in-
court
was not
proper
clearly
therefore
right
by
surer a
the en
to have
court
submit
tried
causes
consolidate the
properly
jury.
Issues
triable
Mutual
This was
In Phœnix
jury
tire
trial.
matter
616,
1871,
advantage
the real
Bailey,
sought
13 Wall.
the insurer
Ins. Co. v.
Life
80
to
one,
apart
open-
sued this case and the
insurer
L.Ed.
U.S.
ing
closing,
deprived.
An action
of which it was
policies
fraud.
cancel
In
of the effect
contrary
on them.
view
rul-
begun to recover
later was
law
trial,
ing upon
right
the claimants’
the dismissal
The decision sustained
beyond
complete
clearly
bill,
dis-
insurer
court’s
because the
cretion to
defending in the action
consolidate
way
the causes and
decline
remedy
try
had to
concerning
substantive issues
and the claimant on
law
See,
liability
also,
the the
by jury.
insurer’s
right
of sub-
to trial
advance
effect,
mitting
jury.
New York Life
them to the
In
Adamos
same
v.
these circum-
Co.,
386, 55
stances the
attempting
293 U.S.
S.Ct.
insurer is
to make
Ins.
79
*16
fraud,
444;
Life
properly
New York
the issue of
Enelow v.
L.Ed.
triable
aas
310,
379,
Co., 1935,
55
matter of
293 U.S.
S.Ct.
defense to
of liability
Ins.
claim
440;
policy,
“equitable”
v.
States Life the
by
79
Cable United
L.Ed.
one for trial
74,
Co., 1903,
288, 24 S.Ct.
It
issues,
191 U.S.
the court.
but
is not the nature of
Ins.
the
inadequacy
the
33 here, and are be v. Ameri- and were such as could Co. jury Mills trial. American law, fully determined at it would seem S.Ct. Surety Co., 260 U.S. can exactly effect denial of the then went on motion court 149, L.Ed. it the court think should be com- said it did not say Rule now makes 13(a) to pulsory counterclaim, equit- given filing as an plead legal well counterclaim, namely, waiver of from the to make of a forced if arises able jury Equity trial. Rule as that on Under former or occurrence same transaction followed, did is the waiver because the rule opрosing claim based. party’s which the compel up legal re- not the defendants to set held defendants The court 13(a), counterclaim. Rule Under quired up legal their counterclaim set interpreted it, applied they are court and commented: the answer formerly forced to do this. What was a compelled they were doing “In thus what matter and therefore effective as choice do, should be I do not think that becomes, change, a waiver in such waiver has, trial. jury held have waived a by compulsion. The defendant’s al- however, always recognized that in been judgment ternatives are default and kind, equity issues should cases of this “waiver” of trial. first; Standard disposed Jefferson Cir., 53; Keeton, 4 Co. F. This, effect, Life Ins. v. waiver, but sur- Surety Mills American American Co. v. right, render of the forced If the rule. ** supra Co., probably *. This will operation perforce right to make the If determine all the issues case. depend solely on whether the insurer or the not, proceed may the defendants it does claimant getting succeeds bill action on the counterclaim.” with their law complaint first, court’s into the files in a *17 page F.Supp. 27 diligence, mere race of there would be seri- question, first, in appli- ous whether such an There is one obvious difference between and, wholly arbitrary, it cation would not be second, in the facts the case Union Central and this invalid, whether it would not be one, namely, beneficiary that the there had scоpe going beyond the rules filed an action at law. Here that was and, affecting only procedure effect, in de- done, eight within little over months priving the right jury claimant of the to insured’s from the death and well within trial. Act of 48 Stat. June period by incontestibility the the allowed (1940). 28 U.S.C. It 723b was not the § contesting for claims clause on the purpose of bring the rule to about such a policy. eight Much of the months must forfeiture. It was rather to eliminate the up proofs taken making have been with existing Equity confusion under 30 Rule loss, investigation by the insurer into the require facts that it did not matter, negotiations for settle filing legal counterclaims and the federal ment, words, In other etc. there is evi practice regarding governed by them was appellee delayed that dence suit, instituting her practice widely. state which varied It 5, 1938, any purpose filed October clearly giving 13(a) would seem to be Rule defeating the insurer’s defenses. Rather if, more force it was to than intended have legitimate facts, the inference requiring in addition to counterclaim to the insurer had she pre was filed, coupled be getting with into court suit, paring claim her and rushed its effect, necessary first should have prior own filing to in order secure a present under the old rule intended under determining liability trial issues one, waiving right jury the new by securing the court and her in forestall trial. jury presented trial. No such facts were in the Union Furthermore, Central case. action least doubtful taken, presented, appears whether, on the there to have been circumstances, facts in these the rule proper respects, except required filing all counterclaim. possibly in grant court’s refusal language is: “A pleading shall state claim, motion for a trial. Cf. Ettelson v. as a counterclaim subject not the Co., 1942, Metropolitan Life 63 action, Ins. S.Ct. which at the time a pending _ may too, 87 L.Ed. . been, pleader have against filing pleading has * * justified upon was the facts opposing party The lan- presented by issues the bill and the guage counter literally apply taken does not presented claim. But if the facts, issues present “at the filing because time of counterclaim, bill and the namely, counterclaim identical pleading,” so, practically appear to have been the claim subject it stated “the was of action,” mother, pending namely, appellee’s clearly suit. and the suf- evidence is But in be finding the circumstances waiver-cannot ficient to sustain a to that effect. implied, In the special interrogatory, since absence of answer absence of a danger there appellee’s of default we must assume the verdict found for the only answer, appellee merits, on the was what the on this issue. Again counterclaim set forth. the alterna repeated The evidence need not tive was not default jury. or waiver of the in detail. assignment The first secured Finally, the mothеr January Rule confers on the while the in sured was in discretionary powers Hospital, District Court broad Garfield the second after she consolidation of removed him “involving apart actions ment, from question appellee, common which she law or fact.” excluded Rule days 13(a) two harmony should be before his construed in death. At both decide, therefore, mortally times' he was it. We need sick growing whether appellee rapidly expected right jury trial, worse. He Ac these die. cording circumstances, reported or whether it statement as would have been Saxe and deny an abuse of Kavanagh, discretion it. Mrs. before the Jane assignment first The court’s discretion was made his exercised in mother had favor, “hounding been clearly day her me all change my and there no abuse to- insurance exercising so over to applies begun it. This her.” both to She doing so before he consolidation of the causes entered hospital. and to the motions, kept up She -consolidation, afterward, denial of the after he suc until cumbed and separate prior signed over trial of the so- to her half the equitable called insurance his paid issues. wife had for. Not satis that, fied kept got she on until she all error, Nor was there reversible as of it. He told wife keep asserts, trying Prudential be issues until he should call for it. It was taken out tween Saxe and Gertrude Saxe in the Jane originally both for protection her and as same cause and at the same time as the security earnings expended for her for liv them, them, issues between or each of and ing purposes when the insured was unem phase the insurer. It is said of the ployed. paid premiums. She The evi *18 greater portion trial consumedthe and later dence of deep-seated the mother’s hatred it, developing of the acrimonious differences wife, for the her, of the latter’s fear of jury, between the women before the to apparent trial, even at the need be prejudice. argument, This insurer’s spread on this record. Nor is citation of however, is properly one more addressed to authority verdict, needed to show that the the trial court’s discretion. The matter evidence, on such must be sustained. The primarily, its discretion brief, but instructions were sufficient. .to¡begained advantages were there obvious exceptions the charge. There were no controversy entire determining assignments There numerous were of er- once, possibilities for disadvan as well ror in relation to admission exclu- parties. tage to the court and to the Many sion of evidence. áre not meritori- may be noted that the between differences instances, error, ous. In other if there was entirely were almost confined claimants prejudicial. themselves, and did not issues between judgment is affirmed. recovery against involve different bases for insurer, except respect ques attempted changes tion whether the STEPHENS, (dissent- Associate Justice beneficiary were effective. ing). should, question may That my opinion, VII. be dis No. 7824 Case posed quickly. There argu much reversed failure of trial court attempted changes
ment whether the appellant: were direct a verdict for In view effective, they were not Hospital since endorsed on Beth of the insured’s Israel ex- required, as it history were made on perience medical as dis- documents, separate Hospital records, the first one not on the closed in the I think the company. negative questions usual form furnished answers to 6d, insured’s questions considered, 7a, These need not be and his affirmative 9a and 10a answer question application assign since it was contended that 10b insurance both procured through were ments undue in misstatements which all reason- constituted upon materially exercised must have found jurymen fluence the insured his able risk; appellant I alleged acceptance the time affected appel- waiver. Waiver relin- alleged waiver of the intentional that the think quishment right requires of a and therefore because right to lant’s avoid right existence of the in the was as misstatements upon depends. the same facts reason law ineffective matter of concerning facts undisputedly material No. 7825 think the In case I instructions Hospital experi- subject court to the insured’s proof respect history burden in- medical shown undue ence fully disclosed to fluence were insufficient. Hospital records