United States Fidelity & Guaranty Co. v. Leong Dung Dye
Citation | 52 F.2d 567 |
Decision Date | 15 September 1931 |
Docket Number | No. 6397.,6397. |
Parties | UNITED STATES FIDELITY & GUARANTY CO. v. LEONG DUNG DYE. |
Court | United 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.
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:
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."
On cross-examination the witness stated:
On redirect examination the witness was asked:
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:
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...
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