United States Fidelity & Guaranty Co. v. Leong Dung Dye

Citation52 F.2d 567
Decision Date15 September 1931
Docket NumberNo. 6397.,6397.
PartiesUNITED STATES FIDELITY & GUARANTY CO. v. LEONG DUNG DYE.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

A. G. M. Robertson, Alfred L. Castle, W. A. Greenwell, and Arthur Withington, all of Honolulu, Hawaii, for appellant.

Heen & Godbold, William H. Heen, and Norman D. Godbold, all of Honolulu, Hawaii, for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge.

Appellee, beneficiary in an accident insurance policy issued to her husband by appellant on October 8, 1928, recovered judgment in the Circuit Court of the Territory of Hawaii for the face of the policy for the death of the assured on April 30, 1929, which judgment was affirmed by the Supreme Court of the Territory and appeal to this court prosecuted.

At the close of the evidence appellant moved for an instructed verdict in its favor, which motion was denied. After submission, the jury returned a verdict in favor of appellee. Thereafter appellant moved for judgment notwithstanding the verdict, which was denied. No challenged instruction of the court is before us for review. Section 2524, Rev. Laws Hawaii 1925. The sole question is: Under the evidence was the appellant entitled to a verdict or judgment as a matter of law?

In the application for insurance appears the following:

"I hereby apply to the United States Fidelity and Guaranty Company for a Policy to be based upon the following representation of facts: I understand and agree that the right to recovery under any policy which may be issued upon the basis of this application shall be barred in the event of any one of the following statements, material either to the acceptance of the risk or to the hazard assumed by the Company is false, or in the event that any one of the following statements is false and made with intent to deceive. I agree that this application shall not be binding upon the Company until accepted either by the Secretary at the Home Office or by an agent duly authorized to issue policies. * * *

"10. No application ever made by me for Accident, Health, or Life Insurance has been declined, or notice of action withheld, nor has any such policy of insurance been cancelled or renewal refused, except as herein stated: No exceptions."

Did the insured make a false statement with relation to interrogatory 10, in that he made application for lfe insurance and was declined? In its answer to the complaint, defendant made specific issue of the making and falsity of the statement, alleging that the policy was issued on the following express conditions and agreements: "That the statements and declarations made in the application for the policy and on the faith of which it was issued were in all respects true, and without suppression of any fact relating thereto affecting the interests of the defendant, and upon the further condition that in case of violation of the aforesaid condition, among others, the policy should become null and void; that the said Harry Apau Dye did violate the condition, in this, that the statements and declarations made by him in his application for the said policy were not in all respects true, but were false in the following respect, to wit: that in the application for the policy and on the faith of which it was issued, the statement was made and signed by the said Harry Apau Dye, `No application ever made by me for Accident, Health or Life Insurance has been declined, or notice of action withheld, nor has any such policy of insurance been cancelled or renewal refused,' whereas in fact he had prior thereto applied for insurance upon his life and been refused on the ground that he was an undesirable risk but shortly before his said application to the defendant, and that if the defendant had known of said refusal it would have declined to write said policy contract of insurance."

And further alleged that on November 25, 1929, it delivered to the attorneys for plaintiff a letter denying liability; that on said date it tendered in legal coin to the attorneys for plaintiff the sum of $36, the entire premiums paid on said policy, and denied liability on the ground that said policy was null and void because of fraud practiced on the defendant; and further denied that the death of the assured was accidental, but that it was the result of suicide. Plaintiff replied asserting that the defense of false representation should not be permitted, because defendant had retained the premium for more than seven months after the discovery of the alleged fraud, and alleged that the tender was insufficient because (1) made too late, (2) no offer of interest on the amount retained by the defendant for more than a year was made, and (3) improperly made to plaintiff's attorneys instead of to the personal representative of the deceased; and further that the defendant failed to perform any act seeking to cancel the policy sued on until after the term for which it was issued had expired.

The agent who negotiated the policy of insurance with the deceased was called as a witness, shown the back of a policy, and asked: "Is that a copy of the application he made?" Objection was made, the court later permitted the question, and the witness answered: "Yes, this is a copy of the application made."

"Was that made out in your office? A. Yes.

"Q. And who made it out, Harry Dye or you? A. I don't remember whether I copied the application or asked him questions, or whether he copied it or not. I don't know.

"Q. Did he sign it? A. Yes." (This was answered over appellee's objection, and exception noted.)

On cross-examination the witness stated:

"A. This was just a copy of the usual form of application.

"Q. And the only reason you say it is a copy of the one that Dye signed is because his name appears there, Henry Apau Dye, is that correct? A. It is a copy of that form of application I would use for —

"Q. But there is nothing to indicate that Dye signed the original of that? A. Nothing here, no.

"Q. You said you did not recall whether you filled this application out or whether Mr. Dye did? A. I don't remember whether he did or I did fill that out or the original.

"Q. As a rule, however, is it not a fact that the agent usually filled them out? A. There is no set rule, sometimes the applicant likes to fill it out, sometimes I fill it out, there is no particular form (rule) that one follows.

"Q. Isn't it a fact, Mr. Woolaway, that often in filling out these applications, after you get the man's name, residence, where he was born, and his age and height and weight, where he lives, where he works, the rest of it is filled out by the agent often without asking him any further questions? A. That is often done.

"Q. It might have been done in this case, as far as you recollect? A. It might have."

On redirect examination the witness was asked:

"Q. Do you remember whether you filled out any of these questions without asking him any questions? A. No; there was a question there on life insurance that appears in the application. I remember talking to him on that point.

"Q. With Dye? A. Yes.

"Q. What did he say? A. The question of life insurance —

"Q. What was the conversation? A. Harry Dye told me that he just secured a policy from John Hancock Co., that was all.

"Q. Did he tell you anything else? A. Nothing that I remember. I remember the subject came up on the subject of life insurance. * * *

"Q. In connection with your asking as to the question of whether he had, that he had made application for life insurance, and whether or not you remember asking him about applications in general of life insurance or accident insurance? A. My question with him on life insurance was not in connection with application, it was what he carried, and I remember him telling me that he had received a John Hancock policy from the International Trust Co. agents, but I don't remember any reference to applications.

"Q. Do you remember asking him this question — A. I don't remember asking that question. I know that is a part of the application that he filled out. I don't remember whether I asked him that specifically.

"Q. Did he fill this application out or did you? A. As I say, I don't remember. I think he filled it out himself."

There was evidence that the deceased had made application for life insurance to the Prudential Life Insurance Company and was rejected, but there is no proof of notice of rejection to the applicant. The witness stated that he was notified "by letter." There is, however, no evidence of delivery by messenger, nor proof that it was deposited in the post office, postage prepaid, addressed to a given address, the usual place of residence of the deceased. Proof of notice that the deceased knew he had been rejected for life insurance was the essence of the issue of fraud and deceit (Wharton v. Aetna Life Ins. Co. (C. C. A.) 48 F.(2d) 37), and the burden of proof was on defendant. This court must determine the issue upon the record as made, especially since the dead cannot speak. And no inference may be drawn in favor of defendant because on cross examination plaintiff could have shown manner of delivery, and omission was a tacit admission. The plaintiff was not required to speak. Fraud is never presumed, nor may the court presume tacit admissions in a link to establish fraud, in the absence of proof.

But this is not the only instance where the proof stopped short of a material issue. The doctor called as a witness by the defendant was asked:

"Q. At some time in 1928, I ask you whether or not you examined Harry Dye for insurance? A. I did.

"Q. What company? A. Prudential.

"Q. What was the date of that examination? A. June 8, 1928, according to my records. That is all."

If the assured was physically and organically unfit for life insurance, this doctor, the only living witness produced to whom the fact was known, was not asked what he found, or what notice, if any, he gave to the applicant as to...

To continue reading

Request your trial
4 cases
  • Genovia v. Jackson Nat. Life Ins. Co., Civ. No. 91-00288.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 11, 1992
    ...Court applied an analogous standard in Leo Dung Dye v. United States Fidelity and Guaranty Company, 31 Haw. 699 (1930), aff'd 52 F.2d 567 (9th Cir.1931), cert. denied, 285 U.S. 537, 52 S.Ct. 311, 76 L.Ed. 930 (1931), holding that a misrepresentation would be material if disclosure of the fa......
  • Cushman v. United States, Civil No. 92-S. D.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 18, 1942
    ...Assur., etc., v. Portland Electric Power Co., 15 F.2d 976; Northwestern Life Ins. Co. v. Wiggins, 15 F.2d 646; United States Fidelity & Guar. Co. v. Leong Dung Dye, 52 F.2d 567, certiorari denied 285 U.S. 537, 52 S. Ct. 311, 76 L.Ed. 930; see also Bailey v. New England Mut. Life Ins. Co., D......
  • PERPETUAL BUILDING & LOAN ASS'N v. Irving Trust Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 16, 1931
    ......In the language of Williams, J., in Fidelity Ins., Trust & Safe Deposit Co. v. West Penn. & ...        The cited case states "The manifest intention of the mortgagor," here ......
  • Territory of Hawaii v. Decorion
    • United States
    • Supreme Court of Hawai'i
    • May 18, 1948
    ...not be considered further. (See Hou v. Hohlweg, 27 Haw. 760; City and County v. Ward, 31 Haw. 186; Dye v. U. S. F. & G. Co., 31 Haw. 699, 52 F.2d 567.) Judgment affirmed. ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT