Mutual Benefit Health & Accident Ass'n v. Snyder

• Decision Date: 07 February 1940
• Docket Number: No. 8301.,8301.
• Citation: 109 F.2d 469
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. SNYDER.
• Court: U.S. Court of Appeals — Sixth Circuit

109 F.2d 469 (1940)

MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. SNYDER.

No. 8301.

Circuit Court of Appeals, Sixth Circuit.

February 7, 1940.

Clifford M. Toohy, of Detroit, Mich., for appellant.

Harold Helper and Morris H. Marks, both of Detroit, Mich. (Drexelius, Helper & Marks, of Detroit, Mich., on the brief), for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

On March 16, 1939, appellee filed a motion to dismiss this appeal from the final judgment entered in the District Court on January 16, 1939, when appellant's motion for a judgment non obstante veredicto was overruled. The motion is upon the ground that appellant failed to comply with 73(g) of the Rules of Federal Procedure, 28 U.S. C.A. following section 723c, as to filing record on appeal.

Rule 73(g) provides that the record on appeal, as required under Rules 75 and 76, shall be filed with the appellate court and docketed within forty days from the date of notice of appeal as required under Rule 73(b). The court, in its discretion, may extend the time to not more than ninety days from the date of notice provided the order of extension is made within the original forty days.

In the present case the notice was filed in the lower court on January 27, 1939, and the record was filed on May 9, 1939. On March 20, 1939, appellant made motion for an extension of time on the ground that its counsel had been engaged in other litigation and unable to prepare the transcript. In response the court, on March 27, 1939, extended the time to April 27, 1939, and on April 19, 1939, further extended it to May 27, 1939.

Appellee insists that the orders of extension, not being within the period of forty days, are void because the court lacked authority under 73(g), but appellant counters that such authority is found under Rule 6(b). The latter rule provides that when, by the rules or by notice given thereunder or by order of court, an act is required or allowed to be done within a specified time, the court, in its discretion, may, at any time for cause shown (1) order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by previous order or (2) permit the act after expiration of the specified period if prior failure was due to excusable neglect; but it may not extend the period provided by law for taking an appeal.

This rule would apply but for the provisions of Rule 73(g) which prohibits the district court from extending the time to more than ninety days from the notice.

As the order of extension herein was made after the expiration of the 40-day period, it is wholly invalid and lends no support for appellant filing the record on appeal May 9, 1939. However, Rule 73(a) provides that after filing notice of appeal "* * * Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

The rules here in question have not been construed heretofore and in order to expedite the decision of cases, the simplification of procedure and the administration of justice, consistent with their purpose, we are satisfied that under the circumstances of this case, failure to file the record in the case at bar was excusable and the motion to dismiss on that ground is denied. Toledo Metal Wheel Co. v. Foyer Bros. & Co., 6 Cir., 223 F. 350; Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83; Shea v. United States, 6 Cir., 224 F. 426.

As an additional reason for dismissal, appellee urges the failure of appellant to file with the clerk of the district court, assignment of errors as provided under Rule 11 of this court, before it was modified by Rule 36.

Under Rule 75(d) of Federal Procedure, assignments of error are abolished unless the appeal is based on a part of the record only, in which event the points relied upon are to be stated at the time of designation. In the present case, the appeal is based on the entire record and appellee's contention is without merit.

On July 12, 1937, David Faigenbaum of Detroit, Michigan, applied to the appellant, Mutual Benefit Health & Accident Association, for a combination health and accident policy with the appellee, Anna Faigenbaum Snyder, then his wife, beneficiary. The appellant issued its policy to the applicant without a medical examination, relying on the truthfulness of the answers given by him in his written application which became a part of the policy. The policy was for the principal sum of $5,000 with double indemnity in case the insured lost his life by accidental means while a passenger on a common carrier.

The applicant was asked if he were sound physically and mentally and replied in the affirmative. He made a negative answer to the question as to whether he had received medical advice or treatment or suffered from any local or constitutional disease within the past five years. He also agreed that the policy for which he applied should not become effective until appellant had accepted his application and he had accepted the policy while in good health and free from injury.

He further agreed that the appellant should issue its policy based on his statements of fact as to his physical condition and that the policy should be unenforceable if any statement were made by him with intent to deceive or which materially affected either the acceptance of the risk or the hazard assumed by the insurer. The policy was dated July 13, 1937, and mailed from appellant's home office at Omaha, Nebraska, to its branch office at Detroit, Michigan, and was shortly thereafter delivered by its local agent to the insured, who died September 7, 1937.

Appellee, as beneficiary, sued for and obtained a verdict and judgment for $5,610. Appellant, complaining of the overruling of its motion for a directed verdict made at the close of all the evidence, insists that the case should not have gone to the jury. It urges three points for reversal; (1) that upon the undisputed evidence, the insured was not in good health when he applied for and received the policy in question and that he made misrepresentations materially affecting the risk and hazard assumed by the insurer; (2) failure of the beneficiary to furnish written proofs of loss pursuant to the provisions of the policy; (3) that the death of the insured did not arise from bodily injuries due to accident.

Conceding that the evidence must be viewed in the light most favorable to appellee's claim and that an instructed verdict in the case would be improper unless reasonable minds were without conflict as to the conclusions to be drawn from the evidence so viewed, appellant urges upon us that it is all one way.

The application in question was taken July 12, 1937, by appellant's agent, Sidney Stolsky, who testified that at that time the insured looked well and had no apparent illness.

Dr. Frederick L. Sperry, a witness for appellant, testified that he was the insured's family physician and that he first treated him professionally on ...