*1 might, probably would, There unreason- al- burden does seem Such a ways deceived, I the who able to me. think that was what someone would be Congress possibilities deception imposes de intended. The statute so minimis giving only require ad- that the the burden truthful conclusion easily purpose union’s The union was vice. could avoid the other than truth- fully problem by wording signs public. if, here, its hand- advise the But as probable much, it is bills as Local 324 did. It that a is not too substantial number my mind, persons deceived, to burden would and if the union with the stating yet truth; more, less, nothing union change no knows this and no does here, wording signs where, rather than half-truth as its handbills, employer I knows that union has believe we must conclude agree purpose contracts with that other unions. I union’s was one other following advising “truthfully public.” comment of Board minority: reached, If such a conclusion question appropriate remedy statutory of an requirement would that “If the However, majority then arise. publicity since the is to must be truthful issue, any meaning, here Respondents need not reach I do not. accuracy to must be the insurer know the facts.” extent 494, n. 138 N.L.R.B. 45. accurately majority opinion here phrase “non-union” observes

a form of has shorthand statement Yet, pickets. used union been issue that observation does not meet here, picketing of which is the effect was, legislation. purpose new One The PRUDENTIAL INSURANCE COM believe, I to insure “shorthand.” accurate AMERICA, Plaintiff, PANY OF majority believes, and the here majority opinion implies, Board The GRAY MANUFACTURING COM signs language PANY, handbills Defendant-Appellant, average indicate man that store non-union as retail Jennie Ditmars, Johnson Defendant- say I clerks. would not this is an Appellee. though (even I reasonable conclusion No. Docket 28448. where, here, it), would not make United Appeals States Court of union name with to “retail a reference Second Circuit. signs appears clerks” at the bottom of the Argued However, Dec. and handbills. 1963. I do not see it is less reasonable to conclude Decided Jan. persons, a substantial number minority even a substantial of non-union members, would “non- consider the words employer union” had no to mean that the union contracts it is fore- whatsoever. If to the seeable union that a substantial persons deceived, number would be “truthfully requirement I believe advising public” is not satisfied. The purpose union’s than to here

truthfully It was advise. to intention- ally hope that mi- at least a substantial nority public deceived. *2 1335,

pleader, determine 28 U.S.C. § Gray rights conflicting Dit- and the totalling proceeds, the mars’ widow to for $104,036.29. On cross-motions some judgment, summary Court District the favor, the Com- and in the widow’s ruled ;- pany appeals. appeal is award of the from the Since summary judgment, material facts the dispute. As not in revealed affidavits, pleadings, stipulations of and ques- parties, policy in the insurance originally in 1944. At obtained tion was Gray’s president, time, Ditmars provide and the was intended “key-man” commonly considered what insurance; customary in such ar- as is rangements, Company pay all premiums and to receive all benefits. February approached 1957, as Ditmars John Mc- sixty-second parties M. Merritt and J. birthday, Maxwell de- Hartford, Conn., Grath, renegotiate for relationship. defendant- cided appellant. through agreement, new extend for December called Ditmars Hartford, Pelgrift, Y. Conn. Robert advisory “as a consultant and in an serve Stoughton, Hartford, (Pelgrift, Dodd & capacity” to and Board Di- its Conn., Walle, New Hubbell & Van de ; also warranted that he rectors Ditmars brief), City, York for defendant- engage enterprise in com- appellee. Company. petitive with that of the MOORE, FRIENDLY and Before return, Gray pay contracted to Ditmars Judges. KAUFMAN, Circuit salary $25,0*00, annual an options purchase to him on a sub- tend Judge. KAUFMAN, Circuit Gray’s capital block of stock. stantial employment By con- the terms an And, present purposes, most for relevant 1957, appellant concluded in tract agreed Company further that “as Manufacturing agreed Company to main- compensation Ditmars,” it additional previously policies certain tain insurance continue for term the con- Ditmars, an on the life of Walter secured existing policies insurance tract Company. Stated brief- executive totalling $200,000 life, in Ditmars’ then agreement provided ly, To attrac- face amount. enhance the wife, present appellee, was to be- agree- concession, tiveness beneficiary policies for of these come the change provided in for a benefi- ment extending through period December ciary. Ditmars, Thus, Johnson Jennie 31, 1962, date on which Ditmars’ em- wife, the decedent’s was to become the terminate; ployment Janu- was to $200,000 of the entire ary 1, 1963, was to have exclusive 1958; years $150,000 rights proceeds. Late after- to the 1959; 1960,1961 $100,000 noon of December Concurrently with the Hospi- walked into the Putnam Memorial agreement, policies insurance Vermont, Bennington, located tal this new under- amended as to reflect intentionally room, empty took standing. Death was virtu- own life with a bullet. Gray did, fact, pay premiums Admitting liability, ally instantaneous. years through brought for the action in inter- insurer pe- policy. payments reported in his of issuance of the Since this these elapsed, since com- since additional riod income tax returns as rights question. as a pensation that Mrs. Ditmars’ he found *3 indicate, vested, nothing cf. Farmer’s Loan us to before There McCarty, moreover, 100 Conn. Ditmars did not satis- & Trust Co. v. consulting (1924), factorily perform concluded that she serv- 124 A. 40 he regardless- during proceeds, required him the life entitled ices agreement. purposes, mental state or motivation For our there- of Ditmars’ fore, appears en- act. Ditmars the time his it that when at Bennington, hospital Ver- tered the Gray appeal, concedes that On complied mont, had been the contract agree- wording employment of the literal only respects, and with in all material proceeds paid required ment that the be eight hours before it was ex- remained argues, appellee. Company to the pire. however, that Ditmars’ intentional act occurring self-destruction, a few stipulation parties contain- of the agreement hours significant before the was to only to the reference Gray rights pire, equitable created question is a model of Ditmars’ suicide legal superior to unenlightening brevity. claims of Ditmars’ In its entire- circumstances, widow. Under the ty, stipulation that “Said recites contends, recovery for Jennie Putnam Walter E. Ditmars entered act; would condone an immoral day ques- we Hospital on Memorial compelled, argues, inflicting it to avoid such re- shortly tion as before visitor “public policy.” sult as a matter of Even on himself and said bullet wound strenuously, Gray sought maintains that purpose an utilized he duty Ditmars’ hospital.” suicide unoccupied violated a of fair room at said Nei- dealing Company, to the party and that of evidence ther a scintilla offered covery would, therefore, pur- for his might widow Ditmars’ illuminate permit profit by motivation; physical own pose or his wrong. insists, very least, At the condition, and eco- mental his emotional inquiry an into status,. be held nomic were all unrevealed. sanity time of his he death.1 If Judge below, opinion In his Clarie sane, argument goes, or so the depart found no reason to wording clear per- intentional suicide should not be agreement of the Company’s rights mitted to frustrate the policy. Rejecting ar- the insurance and guments proceeds policy for, to the of the in such public policy and actual ease, urges, the sole motivation for fraud, he concluded that contracts Ditmars’ suicide must have been to en- required proceeds paid to Jennie rich his widow. Ditmars if mid- her husband died before dispose It night is not 1962; difficult to of the found Com on December he pany’s “public argument. policy” imposed upon payment no restrictions Northwestern Mut. Life Ins. Co. v. John son, death. not- related to He cause ed, moreover, par- 41 U.S. 65 L.Ed. S.Ct. the failure clearly (1920), Mr. Justice Holmes ties to indicate that suicide expressed subject es- the conviction a unanimous to different treatment was significant Supreme recovery by pecially since the itself Court bene providing ficiary committed contained a that no ben- insured had clause whose paid presumed of suicide to violate efits were to be occurring cases suicide could policy. public date of a clause within two In the absence sanity unimportant judg lower court asked for believed the of Ditmars In the Gray’s Judge papers re of the ease. ment on the submitted to to the resolution Clarie; request quest no made for a trial for a trial on this issue seems sanity by party. afterthought. on the issue of either be an parties It thus would seem that both expressly an assurance create absolute ex laudable —to in the insurance contract any generally benefit, cluding be from as free as suicide from the risks death, recovery held, dispute except covered, the fact of was to fact the Court reasonably done.” public policy can be as soon as he denied clearly required. Ins. v. John- state Mut. Life Co. involved Northwestern 101-102, son, supra, case, parties 41 S.Ct. 254 U.S. at instant have been 48-49, “public pol L.Ed. 155. unable to such discover icy” statutory or decisional law Gray’s principal appeal contention sig Connecticut, the the most state with fair-dealing duty tradi- invokes the nificant to the in contacts contract of tionally employer by his em- owed *4 surance. While the Connecticut courts argues ployees. Company Thus, have not been confronted with a situation destroy- wrongfully in “Ditmars’ conduct sig us, .similar to that it seems before ing in order to bestow a wind- himself attempted not nificant suicide does upon appellee, fall the natural benefit a constitute crime under Connecticut object bounty, certainly of fails note, law. It seems relevant more fidelity up measure standard of over, majority jur that the vast of those loyalty required and run-of- of even the passed ques isdictions which have certainly employee the-mill and was permitted tion have a to re appropriate a di- for former officer and upon policy cover an insurance in cases rector who at the time of his death was in which the insured has taken his own highly compensated consultant.” a See, g., Couch, Cyclopedia life. e. 6 of duty Yet, of familiar even if this 1262; Appleman, Insurance Law 1 In § loyalty Company’s recognized, is 367; surance &Law Practice Pruden § obligation upon in context liance Rice, 231, tial Ins. v.Co. 222 Ind. 52 N. misplaced. For the essential seems Leogrande (1944); E.2d 624 v. Societa premise Gray’s argument Dit- —that M. Italiana, S. Fratelanza 133 N.J.L. coolly life in to take his mars decided 42 (1945), aff'd, A.2d 570 133 N.J.L. might at the order that his wife benefit (1946); 45 A.2d 323 Steel v. Driver expense Company’s matter a —seems Union, Pa.Super. Salesmen’s truly only unproved is not (1942); A.2d 20 Patterson v. Natural sanity Indeed, provable a here. even if Premium Co., Mut. Life Ins. 100 Wis. hearing held, post- a be and (1898). 75 N.W. 42 L.R.A. 253 experts resulted in the mortem battle of See also Northwestern Mut. Life Ins. Co. finding sane, that Ditmars had been Johnson, supra. appear impossible virtually would to es- If simply this were a in case which tablish the available evidence that sought pay- insurance to avoid Ditmars’ sole was to motive benefit beneficiary, ment to a it thus is settled wife. clearly recovery the widow’s impulses sub- warranted; by terms, obscure and intense for, express be its pressures conscious drive a policy recovery which can question in out ruled occurring man to self-destruction fasci- have those suicide for acts laymen experts perplexed and nated the date of issuance. within two superficialities alike. And as the surface Holmes, “[w]hen words of Justice problem ex- have been discarded indisputable after makes a a clause insights psychology amined with years, mere evocation one or two bring bear, schol- self-slaughter can psychiatry is at possible motive any one distrust objectionable learned ars have least explanation simple or “obvious” possible murder. motive creation of 3 Thus, failure given while plain act of suicide.2 object the clause “simple” may appear mo- may the one what there inconceivable that It may analysis seem Such an particular tive. act in which a be rare cases example, valid, explicable surface to in terms suicide melancholy depression impossible “auto- seems this case to deter- degree matically” any certainty pre- “natural” or “ob- mine with seem harbingers suicide, cisely potential he decided commit vious” desperation. Indeed, suicidal noted act attempt observers strongest ironically, is, at its often had been unsuccessful drive and he proved precisely had survived moment the wound individuals triumph fatal, psychiatrists greatest probable intense or most Allen, spend years probing period Ellis & con- exhilaration. thoughts, Problem scious and Within: Our Suicide subconscious search- Traitor Menninger, compelled (1961); Man for the K. forces which him 153-154 Against (1938). attempt. classic abortive Himself With questioning study, painstakingly ex- unavailable for Emile Durkheim nothing sociological plored a vast record influences in to indicate the availability concerning cases, roles traced the evidence number of complex mind, any played fac- his state of such determination varied family background, strongly guess-work. religion, ed- would savor of tors as Judgments status, climate, permitted ethnic ucation, not be economic *5 upon origin ephemeral Durk- rest status. so marital See a foundation. and point- heim, (1960). Durkheim Suicide “explanations” And if surface are noted, edly however, that he com- was sought, equally it would seem reasonable speak generalities, pelled to in and by to conclude that Ditmars was driven virtually impossible pinpoint to it was personal wholly considerations, unrelated any particular the suicide. cause might benefits which inure his volition,” explained, the “is “Human he Thus, widow. it could be noted that Dit- complex phenomena. The most all age sixty-eight years mars was at the attempt- improvised judgments, value of death, time of his and that statistics origin assign each definite a tendency dicate that the towards suicide special few case from a suicide] [of advancing years. increases with When is, hastily collected bits information hospital, he entered the Year’s New Eve slight.” therefore, obviously 148- Id. at approaching, traditionally was a time of sociological patterns general 49. While nostalgic remembering, reflection, and undoubtedly play part, Durkheim depression. eight hours, even Dit- gives continued, of suicide “each victim mars’ association stamp expresses personal which his act a period been special temperament, conditions working (even center of his life involved, which, in he con- is subject contention) occasions by explained sequently, cannot about to come to an end. Even those general phenom- social and of the causes psychiatric imagine training without can Id. enon.” at 277-78. sixty- upon a man of effect traumatic might eight, The one man have been knows that few hours who who within explain occupation inexplicable able to an otherwise all ties to his will severed. himself, act Walter Ditmars and this factors, just ex- But these as those absence, he In his has failed do. it ternal considerations which would be painful, “explanation” of an case individual ter- itself to the sort com- stages monly provided by daily newspapers, minal here, of a fatal disease. But even “clearly” type glib analysis hardly what at first blush would this accepted can really seem the falls suicide’s motivation as definitive. amazes “What explanation. Thus, most, simple short of a conclusive one planations is these psychiatrists continually would search for reasons are but that offered unquestioningly why- posed readily the individual in the case be- are so differently accepted greater haved from the far in a world where science people everyday experience number afflicted with the alike confirm the un- same disease, fight who on until And end. trustworthiness the obvious.” Men- particular ninger, infra, may lend while act suicide 17. at motive was Ditmars in his state of mind mis- then establish cited to n enrich judged superficial widow, “ex- the lethal nature of bullet taking prompted by far a de- planations,” account have been no sympathy in an to draw attention or the subconscious sire more role vital Mennin- he As Karl himself after survived. See Mennin- act of self-destruction. ger, supra. noted, approach uncon- ger “the When this is taken persuasively has significance any attempt account, purposes into to discover are of scious understanding sole motivation behind suicide the suicide n apparently voyage inevitable, truly simple, external does become a of uncer- tainty. supra, Menninger, at (cid:127)circumstances.” Truly and his understand 19. Gray pictures Ditmars as an While dispose act, first of all must “we principled equally schemer, is least it simple act is that suicide notion naive permissible deeply to consider him a n psychological recognize that from man, disturbed driven a combination very complex, standpoint no matter complex own forces of obscure Indeed, appear. a consider- how it light, destruction. When viewed study suicide able obstacle distinguish there seems no reason assumption simple popular of its death of Walter Ditmars Under (cid:127)causal connections.” Id. any other has succumbed individual who circumstances, psy- these and with is, beyond for causes And it his control. knowledge chological concerning suicidal recognition finally, that Ditmars n drives so inconclusive case, in this responsible” “held not be impossible to conclude that a court seems deeply impulses rooted obsessive powers psychic possessed jury *6 compulsions true “caus- which were the precise required motive to determine sharply es” of his which differ- death suicide, any more than the for Ditmars’ present entiates the case those from poem townspeople could Robinson’s juries which or are able to deter- courts anguish Richard hidden of a divine “state of mine “intention” or mind.” Cory.3 here, if that For even it could be found likely responsible Indeed, a it is that “intended” to benefit his wife might argue body psychiatric opinion same, company’s expense the—-in his at- that Ditmars did not even wish overly simplified may it sense that tempt that, to that even prisoner make to a “intended” successful — found that They moment, he to die. did want a a “intended” or defendant confession highly significant, in this find would to would commit murder —this hospital regard, a chose inquiry. inter- In the should not end the setting society, his life—-the one to take which it is reason- ordered ests of likely least a wound was argue in which bullet who “inten- a man to able fatal, in which life- one tionally” to be site held will be a crime commits likely saving act, accept to be were most responsible facilities his imposed circumstances, society has consequences present. which Under these suggest the forces have been psychiatrists would some —whatever every- fine, Cory town, thought that he was Richard went down we Whenever thing pavement him; people looked at We gentleman crown, in his wish that we were sole To make us was a from He imperially place. favored, and slim. Clean worked, always arrayed, quietly on waited So we And he was light, always talked; was human when he And he said, pulses meat, he he fluttered when But still and cursed without And went ‘Good-morning,’ glittered bread; he and he when Cory, walked. calm summer And one Richard night, yes, And he was richer than a rich — through king— put his a Went home bullet admirably every grace; head. And schooled background lurking or subcon- in his two the incontestable clause impelled elapsed, But him so act. the cause of his was scious which death similar social interest there seems no immaterial. Ditmars could agreed psychological disregarding dis- that suicide the severe void the maladjustments policy bring emotional at least about a locations division proceeds a man to suicide. such as can drive cash which surrender company. They short, in this no rational reason value to the I there did not. speculate jury find no reason to should be restricted case the rea- inquiry prompted sons familiar the sort of limited Ditmars to take his inquiry end life. The condition of our law—an finding simple that Ditmars death. He met with the condition. The named conscious the financial benefits which was entitled proceeds. bring wife, and as his death would graft on result contract, silent sub- which was Judge FRIENDLY, (concur- Circuit ject, exclusion contended the suicide ring). Gray. by allega plain It the undenied here, present Under the circumstances meager pleadings tions in the Judge Clarie followed the feasible stipulation facts did not entitle wording relying upon the clear course in summary judgment. grant But agreement parties. between summary judgment to Mrs. Ditmars is a psy- post stage, facto At this ex perplexing different and more matter. chological merely examination in- whether, prove The issue is could uncertainty the contract troduce where at a trial that Ditmars had taken provides clarity, any substantial without primary life for the sole or even shedding light promise upon the much purpose diverting large sum mon true causes Ditmars’ In cases suicide. ey to his wife guided one, such best as this to be president which he had and director been contract, wording clear from 1938 to and thex’eafter well- insisting rather in each paid years, “consultant” for another six *7 undergo parties stance the must time equity ought impress not trust expense protracted litigation, of company’s not, indeed, for favor — comprehend a futile effort to an act policy, entire face amount of the but easy which does not lend to ex- itself the substantial cash surx’ender value planation. would have to been entitled Compare collect a few hours later. light complexities unique to of the proceeds hardly division of directed in Man suicide, be added it need cases of Moore, ufacturers Life language reasoning Ins. v. 116 F. Co. of that the Supp. (S.D. .1953). 171 Calif opinion are not intended to furnish guide in which to other situations agree Gx-ay’s position I cannot “intention,” a determination “motiva- of rejected supposed must of a because tion,” required. or “state of mind” is impossibility inherent of its establish- Judgment ing degx’ee affirmed. Ditmars’ motivation with regarded usually ac- assurance as Judge MOORE, P. Circuit LEONARD age justice. ceptable in a court (concurring result). in the long passed has when it was “com- since Judge knowledge thoughts I in the result. As mon man concur that the agreement found, tried, shall himself Clarie not be for the Devil required thought Brian, man,” not the insurance knoweth proceeds J., (1477).. paid Jen- the insurance to in Y. B. f. 2 17 Edw. 4 Pasch. daily judges nie Now is Ditmars in the event that Ditmars business for midnight juries plumb mainsprings died to hu- before December “the many conduct,” Duberstein, 1962. He than man 363 did. more C. I. R. v. Since readily span. think One can 4 L.Ed.2d fits and life 278, 289, 80 S.Ct. U.S. strengthen in- indeed, as, of facts that (1960), ago ference, weaken and of others that would not we directed stance destroy R., But the task is of himself, 302 or even it. I. v. C. spect regulating courts, 1962). the rela- (2 Life itself sort 481, 488 Cir. F.2d man, or man and jury’s tions of man and may depend determination aon obliged per- society, frequently kill- perpetrated a a defendant whether form; yield in “the belief “a deliberate with or without design trustworthiness the obvious” death without premeditated effect the luxury Law, killed,” substitute is a that is Mc- a better person N.Y.Penal of Kinney’s Consol.Laws, surely for them —as we would have c. § recognize if the contract had contained far subtle involves a task that often express excluding condition a suicide problem an than the of motives evaluation purpose maturing policy. Caruso, for the g., People presented. E. here ; (1927) see N.E. 390 246 N.Y. agree Neither I the silence can Law, Cardozo, Do for What Medicine Can matter; contract ends Essays and Other in Law and Literature possible impose would still on it True, (1931). a case the in such 96-101 what Corbin calls a condi “constructive inquiry alive, subject but he oft- tion” that Ditmars would not mature the reasons, and, for obvious stands mute en policy by taking solely pri his life testimony motivation as own marily wife’s financial benefit. weight. compared rarely given As (1960 Contracts, ed.). 3A 653-54 §§ determination, can have far one such a crucial issue is whether we should. “simple” greater assurance process spoke Bentham one tragic planation sui- motive for “supplied wherein the courts have great depression, when men cides shortsightedness by doing individuals, poor physical financial excellent for them what would have done than suffer their lives rather health took imagination themselves if large policies lapse insurance anticipated the march of nature.” only hope of financial se- afforded the Works, 190, quoted Corbin, supra, curity none their loved ones. This p. 140, enough fn. It is clear if psychoanalytic ef- the less so because of condition, had asked for such a ei caused some forts to ferret out what agreed ther Ditmars would have to it or prob- similar do this when others with a there would have been no contract. But inquiry which does lem did not—an what is not so clear is that deny motivation but rather the obvious sought a condition of this sort questions in some it led to action possibility of such action *8 If the facts we cases but not others. Gray might had occurred to it. well have respect Ditmars were have with now that the risk too small considered get, all we could ever the inference as resentment, or warrant discussion and merely pos- seem not motive would that, in even remote event that Dit irresistible; his attain- almost sible but go willing to such mars should be many the not so ad- usof deem what ought lengths, allowed his widow age 68, the memories of vanced her wanted so much retain what he yesteryear, New Year’s eves either am convinced Hence I have. prospective with severance of association har “in condition would that such mony he had been from which parties] they what [the with fight proxy six thought on the threat of fore tired and said R., 140, Corbin, p. supra, years before, future,” I. C. Ditmars v. see seen in “the nearly accord 487, it would or that supra, F.2d at situation,” justice Giumar timing significant sui- herent of his as Inc., Harrington Heights, 33 N.J. yielded ra v. very day cide (1954), 695, Super. 178, 109 A.2d financial bene- optimum combination of 548, (1955), aff'd 18 N.J. 114 A.2d 720 regards a more useful Corbin formulation, pp. Compare 140-41. 6 Wil liston, (1962 Contracts §| ed.). join judg On this basis I ment court.

Joseph Jr., SOVIERO, F. Trustee in Bank ruptcy Raphan Carpet Corpora tion, Trustee-Appellee,

The FRANKLIN BANK NATIONAL OF ISLAND, Claimant-Appellant. LONG

No. Docket 28262. Appeals

United States Court of Second Circuit.

Argued Nov. 1963.

Decided Feb. City Koenig, Abraham & New York (Jacob W. Abraham and J. Herbert Silver, City, counsel), New York

trustee-appellee. City Weintraub, Levin & York New (Elias Mann, City, New York and Her- Bursky, counsel), Brooklyn, man A. claimant-appellant. WATERMAN, Bef®re MOORE and *9 SMITH, Judges. Circuit MOORE, Judge. LEONARD P. Circuit cause, Pursuant to an order show bankruptcy Raphan Trustee Carpet Corporation sought adjudica- separate tion that the assets of thirteen corporations, bearing “Raphan” each corporate (“Affiliates”) in its name