Kithcart v. Metropolitan Life Ins. Co.

Decision Date09 March 1937
Docket NumberNo. 10715.,10715.
Citation88 F.2d 407
PartiesKITHCART v. METROPOLITAN LIFE INS. CO.
CourtU.S. Court of Appeals — Eighth Circuit

Charles N. Sadler, of Kansas City, Mo. (Harold Waxman, of Kansas City, Mo., on the brief), for appellant.

Henry I. Eager, of Kansas City, Mo. (William C. Michaels, of Kansas City, Mo., Harry Cole Bates, of New York City, and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant brought suit in equity to set aside a judgment entered in the United States District Court for the Western District of Missouri, the court from which this appeal comes, in a law action wherein he was plaintiff and the appellee was defendant, on the ground that the judgment had been obtained by fraud practiced upon plaintiff by defendant through its agents and servants. We shall refer to the parties as they appeared below.

Defendant filed its motion to dismiss the bill for the reason that the matters and allegations contained in the bill were insufficient in fact and law to constitute a valid action in equity against the defendant. This motion was sustained, and there being no request for leave to amend, the bill was dismissed.

The sole question presented on this appeal is the sufficiency of the bill of complaint. Omitting the formal allegations and those going to the jurisdiction of the court, the bill alleged in substance that at all times mentioned therein plaintiff had an accident policy issued by defendant, by the terms of which he was entitled to recover a certain sum therein mentioned for each week he was disabled through accidental means; that he suffered a total disability from an accident within the terms of the policy and was entitled to be paid therefor the weekly indemnity provided by the policy, but that although he had complied with all the terms and conditions of the policy, defendant refused to pay him any sum whatever; that on or about November 5, 1931, he instituted a suit in the circuit court of Jackson county, Mo., at Kansas City, against defendant to recover the amount due him; that "the petition in which said suit, together with photostatic copy of policy thereto attached is hereby incorporated herein by reference with the same force and effect as if copied verbatim herein; that thereafter and in due time defendant removed said cause to this court on the ground of diversity of citizenship * * *; that defendant filed an answer denying generally all the allegations in said petition"; that said cause was heard before Hon. Albert L. Reeves, one of the judges of said court, and a jury, on or about May 15, 1933, and resulted in a verdict in favor of defendant, and upon the verdict judgment was entered in favor of the defendant; that thereafter, on May 22, 1933, plaintiff filed a motion for new trial, which on July 11, 1933, was overruled, and no appeal was taken therefrom; that said judgment was obtained by fraud on the part of defendant, its agents and servants, practiced upon the court, the jury, and plaintiff in the following respects: "That the chief defense made by defendant on the question of liability under its denial as aforesaid was that the policy was void because it was obtained by fraud and misrepresentation on the part of plaintiff at the time said policy was issued in that said policy provided that if there was misrepresentation as to sanity, among other things, it should be void, and that plaintiff in his application stated that there was no insanity, and that defendant had no knowledge of any insanity or alleged insanity of plaintiff and especially had no knowledge of the reports of the army surgeon introduced in evidence at the trial of said cause; that it had made no medical examination of plaintiff and for these reasons the policy was void; that in truth and in fact the agent of defendant, R. G. Dennison, who solicited this policy was told and knew of the action of the army surgeon and was told that plaintiff denied such report and always maintained that he was sane, and said agent before issuing said policy told plaintiff that under that state of facts his company (this defendant) would require a medical examination and directed this plaintiff to go to a physician, hereinafter named, for such purpose; that this plaintiff did go to said physician and told said physician of the action of the army surgeon and was examined by said physician and said policy was issued with full knowledge of such conditions by defendant, its agents and servants and it waived any right to make this defense; that this plaintiff was led to believe, and did believe, by defendant, its agents and servants, both by acts and words that no such defense would be made and he did not know and had no reason to believe it would be made and therefore made no preparation to meet any such defense, believing and knowing that if such defense was attempted the records of said defendant would show it was waived; that he did not know or expect such defense to be made until after the trial of this case was begun; that defendant, its agents and servants, concealed and fraudulently hid all records showing such medical examination and its knowledge of such facts, and denied that any medical examination was made or that it knew of the action and reports of the army surgeon, and fraudulently concealed the whereabouts of the said agent taking the application and who took plaintiff to a physician for examination; that this plaintiff was assured by such agent that no question of sanity would or could be raised by defendant after such examination and this plaintiff did not make any record of the name of the physician and when this unexpected defense was raised during the trial he was unable to remember the name of the physician or the exact number of his office and after making every effort to locate such physician and the said agent he was by reason of the willful and fraudulent acts of defendant, its agents and servants as aforesaid, deprived of such testimony and as a direct result of such willful and fraudulent acts of defendant, its agents and servants, he was defeated; that defendant, its agents and servants, fraudulently and willfully concealed the fact that a medical examination had been made and denied that such examination had ever been made, and willfully and fraudulently concealed the whereabouts of said agent and denied that defendant, or its agents and servants here knew anything about him; that such acts and conduct was willful and was done for the purpose of preventing plaintiff from procuring the evidence above mentioned which would have shown that defendant was not entitled to make such defense, and a fraud was thereby practiced upon not only this plaintiff but the court and jury trying the said case; that by reason of the wrongful and willful acts of defendant, its agents and servants, he was unable to prove a waiver by defendant; that he was unable to get such facts for a long time thereafter; that plaintiff has since learned that Dr. W. A. Armour of Kansas City, Missouri, made said examination and was in Kansas City at the time of said trial and if plaintiff had known his name, could have procured his attendance as a witness; that plaintiff believes that if said physician had been placed upon the witness stand he would have testified that he did make such examination for said defendant, its agents and servants, and made a report of his findings, together with the fact that plaintiff had told him of the action of the army surgeon as aforesaid; that defendant, its agents and servants, also concealed the whereabouts of said agent Dennison to whom such information was given and denied any knowledge of his whereabouts, when in truth and in fact said Dennison was then in the employ of defendan...

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