Ocean Accident & Guaranty Corporation v. Rubin, 7263.

Decision Date08 October 1934
Docket NumberNo. 7263.,7263.
Citation96 ALR 412,73 F.2d 157
CourtU.S. Court of Appeals — Ninth Circuit

Sanders & Jacques, Y. A. Jacques, and Hugh A. Sanders, all of San Diego, Cal., for appellant.

Morris Binnard, Gray, Cary, Ames & Driscoll, W. P. Cary, and Burton D. Wood, all of San Diego, Cal., for appellees.

Redman, Alexander & Bacon, of San Francisco, Cal., amici curiæ, for Ætna Life Ins. Co. et al.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

On July 31, 1928, the appellant, a British corporation, executed and delivered to Myer Rubin a policy of insurance wherein the appellant agreed that, in case Rubin should, while the policy was in force, meet with his death "directly, independently and exclusively of all other causes from accidental bodily injuries — suicide while sane or insane is not covered," the appellant would pay to the appellees, the beneficiaries named therein, the sum of $30,000.

Inter alia, the policy contained the following provisions:

"(1) This policy includes the endorsements and attached papers, if any, and contains the entire contract of insurance, except as it may be modified by the Company's classification of risks and premium rates in the event that the Insured is injured after having changed his occupation to one classified by the Company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the Company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation.

"(2) No statement made by the applicant for insurance not included herein shall avoid the policy or be used in any legal proceeding hereunder. * * *

"(14) No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy ninety days after the date of such loss.

"(25) The falsity of any statement in the application * * * materially affecting either the acceptance of the risk or the hazard assumed hereunder, or made with intent to deceive, shall bar all right of recovery under this policy.

"(26) A copy of the application endorsed hereon is hereby made a part of this policy. * * *"

The copy of the application referred to in the policy contained the following questions and answers pertinent to the instant controversy:

"4. Q. By whom are you employed?

"A. Myself, whose business is Furniture, Located at, etc.

"5. Q. What is your occupation?

"A. Furniture Merchant.

"6. Q. What are the duties of your occupation?

"A. Selling and buying furniture, office duties and traveling only.

"14. Q. (a) Have you now, or have you had during the past five years any local or constitutional disease? or (b) have you been attended by any physician during the past five years?

"A. Date For what How Attending injury or long Physician disease Disabled "(a) No. "(b) No."

On July 8, 1930, Rubin sustained certain injuries as a result of a collision between his automobile and a street car. On July 10, 1930, Rubin signed a notice of accident containing details concerning the collision and his injuries. The notice, which was prepared by an adjuster for the appellant, described Rubin's occupation as follows:

"My place of business is — retired one year ago — Furniture.

"Present occupation — Collecting accounts."

The insurance adjuster, called as a witness for the appellant, testified that Rubin told him at the time that "he was collecting his own accounts."

As of July 31, 1930, the appellant renewed Rubin's policy for six months, "subject to all its conditions."

On November 19, 1930, while changing a tire on his automobile, on the highway between San Diego, Cal., in which city Rubin resided, and Tijuana, Lower California, Mexico, Rubin was struck and killed by an automobile driven by Michael A. Lang, an employee of a Tijuana distillery. Lang was driving northward toward San Diego, and Rubin's car was likewise "pointed in the direction of San Diego." The accident occurred at 5:30 in the afternoon, about three miles from the international boundary line, on the American side.

In a statement dated November 20, 1930, the day following the accident, from the appellant's claims department at San Diego to its claims department in San Francisco, bearing the initials of Max H. Seeger, the appellant's adjuster, hereinabove referred to, the following paragraph appears: "In reconstructing the story, the state police say that Rubin most likely was working at this front wheel and that he stepped back while working with tools directly into the path of Lang's car; that the marks of Lang's car show it was the center of the front bumper that struck Rubin. Rubin was picked up on the left side of the highway 50 ft. west of where his car was parked. I questioned the officer regarding anything unusual or tending to indicate a possible suicide and the officer stated he was satisfied from his checkup that this was a legitimate accident in that he actually found the punctured tire and that Rubin was in the act of changing this tire."

The foregoing is a part of an exhibit introduced by the appellant through its witness Seeger.

On November 28, 1930, the appellees filed with the appellant a sworn "statement of claimant," in which they declared that Rubin was a furniture dealer at the time of the accident, that he was en route to San Diego when it occurred, and that his duties were such as were "relative to the furniture business."

On June 26, 1931, Ethel Rubin, the widow of the insured, and one of the appellees herein, filed a complaint in the superior court for San Diego county, Cal. The other plaintiff was Harvey Rubin, the son of the insured, who is also an appellee in the instant case.

The complaint recited that Harvey Rubin was under the age of 21 years; that on June 26, 1931, I. Rubin was duly appointed by the superior court to act as guardian for young Rubin in the action then being filed; that the policy, a summary of which was given in the complaint, was attached thereto and was made a part thereof; that, for a valuable consideration, the policy had been renewed from term to term, and was in full force and effect at the time of the fatal accident, the circumstances of the accident being then briefly set forth; that the appellees had duly performed all of the conditions mentioned in the policy; that more than sixty days had expired from the time when the appellees had performed such conditions; that they had demanded of the appellant the sum of $30,000, "but that said demand has been refused, and no part of the same has been paid"; and that therefore the appellees prayed judgment for $30,000, with interest at 7 per cent. from November 19, 1930, etc.

On July 20, 1931, at the instance of the appellant, the cause was removed to the court below.

The appellant filed a demurrer, setting forth that the complaint did not state facts sufficient to constitute a cause of action, and that it was uncertain, ambiguous, and unintelligible because it could not be ascertained therefrom what bodily injuries, if any, the decedent received on being struck by an automobile; because it could not be ascertained therefrom whether or not Rubin was instantly killed, or whether there were intervening causes or conditions that brought about his death independently of any alleged accidental injuries; because it could not be ascertained whether or not the appellees gave written notice of the injury within 20 days after the accident, or whether or not, if death immediately ensued, notice thereof was immediately given to the company; because it could not be ascertained whether or not an opportunity had been given to the appellant to make an autopsy; and because it could not be ascertained whether the appellees intended to allege that proof of loss was given to the appellant as required by the policy, so that it could be determined whether or not sixty days had elapsed since such notice, "if any," had been given to the appellant.

The court below overruled the demurrer.

Thereafter the appellant filed its answer, denying categorically each paragraph of the appellees' complaint, except the statement that demand for payment had been made and refused, and the paragraph alleging the appellant's corporate existence. In addition, the appellant's answer contained the following affirmative allegation: "* * * This defendant in said policy of insurance agreed that in case the said Myer Rubin should, while said policy * * * was in full force and effect, meet with his death directly, independently and exclusively of all other causes from accidental bodily injuries — suicide while sane or insane excepted, it would pay the beneficiaries named in said policy the sum of * * * $30,000.00."

The appellant also interposed nine separate defenses, the second of which, dealing with Rubin's average weekly earnings, was formally abandoned in open court.

The first defense alleged that Rubin had committed suicide. The third and fourth defenses charged Rubin with false representation in connection with the statements in his application, already set forth. The fifth defense alleged that Rubin "wilfully and intentionally parked his automobile on the side of the highway, * * * and deliberately and intentionally ran in front of another automobile and as a result thereof received the injuries which resulted in his death," etc. The sixth defense charged that the decedent's body had been embalmed, and that therefore the...

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  • State ex rel. Edmisten v. J. C. Penney Co., Inc.
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    ...of accounts is a part, and a vital part, of any merchandising business in which credit is extended." Ocean Accident & Guaranty Corp. v. Rubin, 73 F.2d 157 (9th Cir. 1934). As Justice Lake ably points out, dissenting in Gardner v. Reidsville, 269 N.C. 581, 597, 153 S.E.2d 139, 151 (1967), ou......
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