112 F.2d 927 (8th Cir. 1940), 11686, Toucey v. New York Life Ins. Co.

Docket Nº:11686.
Citation:112 F.2d 927
Case Date:June 29, 1940
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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112 F.2d 927 (8th Cir. 1940)




No. 11686.

United States Court of Appeals, Eighth Circuit.

June 29, 1940

Rehearing Denied July 22, 1940.

Cornelius Roach, of Kansas City, Mo., for appellant.

Richard S. Righter, of Kansas City, Mo. (Horace F. Blackwell, Jr., of Kansas City, Mo., Louis H. Cooke, of New York City, and Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

From a final decree permanently enjoining Samuel R. Toucey from relitigating in his own name or in the name of any other person the issues determined by the court below in this cause and from attempting to prosecute or proceed further in a suit pending in the Circuit Court of Jackson County, Missouri, entitled, 'James Shay, Plaintiff, v. New York Life Insurance Company, a Corporation, Defendant,' he has appealed.

Briefly stated, the facts are as follows: On January 2, 1924, the New York Life Insurance Company issued to Samuel R. Toucey a $50,000 policy of life insurance, which contained a provision that $500 a month would be paid him if prior to age sixty he became totally and permanently disabled. On September 26, 1934, the policy was surrendered by the insured and was reduced so that the death benefit was $25,000, with corresponding reductions of other indemnities and in future premiums. On October 26, 1935, the insured commenced

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this suit in the Circuit Court of Jackson County, Missouri, to set aside the reduction of the policy and to procure its reinstatement as originally written. In his bill of complaint he alleged that in April, 1933, he became totally and permanently disabled within the meaning of the policy and was entitled to the $500 monthly disability benefits from and after that time; that he was then not advised of his rights under the policy, and that in 1934 he was fraudulently induced by the Insurance Company to accept the reduction of the policy. The prayer of his bill was for a reinstatement of the policy as originally written, and an award of the disability benefits provided for. The Company removed the suit to the court below. In its answer it denied that the insured became disabled as he alleged and denied that the reduction of the policy was induced by fraud. The issues were tried, and the court...

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