New York Life Ins. Co. v. Graham
| Decision Date | 25 October 1937 |
| Docket Number | No. 8399.,8399. |
| Parties | NEW YORK LIFE INS. CO. v. GRAHAM. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wright, Jones & Bronson and Clark A. Eckart, all of Seattle, Wash., for appellant.
Bell, McNeil & Bowles and Hamlet P. Dodd, all of Seattle, Wash., for appellee.
Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.
This action, commenced in the superior court of Washington for King county, was regularly removed to the District Court of the United States for the Western District of Washington, Northern Division, upon the ground of diversity of citizenship.
The plaintiff brought this action to recover, as the beneficiary, upon a double indemnity provision of a life insurance contract issued by defendant, appellant herein.
The complaint alleges that the assured came to his death by accidental means, that due proof thereof has been made, but that the double indemnity has not been paid.
The complaint then proceeds to allege that the plaintiff previously brought an action against the same defendant in the superior court of the state of Washington upon a $1,000 policy which was identical with the one in question except as to number and amount. Copies of the pleadings, verdict, and judgment in the first action are made a part of the complaint as exhibits. It further alleges that the defendant, in its answer in the first action, denied accident as the cause of death and alleged that death was the result of suicide, which was denied in plaintiff's reply; that trial resulted in verdict and final judgment for the plaintiff, and that by virtue of such proceedings it has been judicially determined that death was accidental and that the defendant is estopped thereby from denial thereof in this action.
The complaint further alleges that the defendant herein had made a payment of the face of the policy in the sum of $4,000, but that such payment was not made as a payment of the double indemnity provisions of the contract; that in the proceedings in the state court a payment had been made by the defendant to the plaintiff covering the face of the policy involved in that action and the defendant therein, by its answer, alleged that said payment had been made in full for all liability and in full settlement of all claims under that policy; that by her reply in the first action the plaintiff denied that said payment was intended as a full payment of all liability under said policy and had affirmatively alleged that at the time of the delivery of said policy to the defendant the defendant had issued to the plaintiff its receipt admitting that it was understood that the plaintiff had not received any allowance or settlement for the double indemnity provisions thereof; that all of the transactions in connection with the payment under the policy here in suit were made and had at the same time and as a part of the transactions under the policy involved in the first action and the receipts issued by the defendant covered both policies; that by the said proceedings it has been judicially determined that the payment of the face of the policy was not made and given as a settlement in full of the amount due the plaintiff under the double indemnity provisions of the policy.
The defendant moved to strike all those portions of the complaint which alleged the prior proceedings and their connection with this action upon the ground that such allegations were irrelevant and immaterial, did not state or had not stated a cause of action, and that it appeared from the complaint that the plaintiff is estopped from raising these issues. This motion was denied and an exception allowed.
Thereafter defendant interposed its answer to the complaint and plaintiff filed numerous motions to strike, which motions were granted and exceptions allowed.
Thereupon the defendant filed an amended answer, whereby it denied that the death of the assured resulted from accident and denied that death resulted from a fall, directly and independently of all other causes, and further denied that by virtue of the original proceedings there had been any judicial determination that said death was accidental or that the defendant was estopped from asserting otherwise. Defendant further denied that it had failed to pay any part of the claim except the sum of $4,000; denied that the sum paid was made as a payment for the face amount of the policy and was not made as a payment of the double indemnity; affirmatively alleged that about May 25, 1933, the defendant paid the sum of $4,049.09 in full settlement of all claims under the contract; that said payment was in excess of the amount to which plaintiff was entitled under the terms of the contract for the face of the policy; and that said excess was paid and accepted as settlement of the claim for double indemnity; denied that it had been judicially determined in the first cause that the payment of the face of the policy was not given as a settlement in full of the amount due the plaintiff under the double indemnity provisions of the policy therein involved; admitted that the exhibits made a part of the plaintiff's complaint are true copies of the originals, in the former action, but denied any allegation as to the contents of such originals inconsistent with the exhibits made a part of the record; and particularly denied that plaintiff's reply in the original action contained any allegations relative to the policy herein involved.
By its first affirmative defense, the defendant alleged that the policy provides that double indemnity provisions shall not apply to death resulting from self-destruction and that the death of the assured resulted from self-destruction.
For its second affirmative defense, the defendant alleged that the policy excepted from the double indemnity provisions death resulting from physical or mental infirmity or directly or indirectly from illness or disease of any kind, and that the death of the assured resulted from physical infirmity, illness, and disease.
For its third affirmative defense, defendant alleged that the plaintiff had made claim for the double indemnity under the policy, which claim was denied; that the defendant agreed to pay to the plaintiff the sum of $4,049.09 in full settlement of all liabilities under the policy; that said sum was in excess of the amount to which plaintiff would have been entitled under the terms of said policy, exclusive of the double indemnity provisions thereof; that thereafter it delivered its check in the above amount upon the above conditions; and that the same was accepted by the plaintiff in full settlement and the policy was surrendered for cancellation.
For its fourth affirmative defense, the defendant alleged that all rights of any kind which the plaintiff may have had under the policy involved in this action matured at the same time as any rights which the plaintiff had under the policy involved in the prior action; that under the statutes of Washington and rules of its courts plaintiff could have joined both causes of action in one suit as separate causes of action; that she also could have brought both actions at the same time separately, in which event either party could have moved for consolidation for the purposes of trial; that there was no way for this defendant to compel the plaintiff to bring this action and to dispose of it at the same time as the previous action; that by said course of conduct the plaintiff elected to try the two actions separately and has waived any right to insist that it has been previously determined in the superior court action; that plaintiff prevented the possibility of disposal of both actions at one time and has made this action necessary and is thereby estopped from asserting that any questions in this action have been previously determined.
For its fifth affirmative defense, the defendant alleged that the first action referred to was not removable to the district court; that this action is, and has been, removed to the United States District Court; that the Constitution and the laws of the United States guarantee to a nonresident defendant the right to remove an action for trial upon the merits; that the plaintiff seeks to deprive the defendant of its right to trial of this controversy upon its merits in the United States District Court; and that any finding that the defendant is bound by the verdict and judgment in the action tried in the first case would constitute the denial of the defendant's right to trial upon the merits in the District Court in contravention of article 3, sections 1 and 2, of the Constitution of the United States and of the statutes supplementary thereto.
Thereafter, plaintiff filed a motion to strike each of the five affirmative defenses and to strike that portion of the denial which affirmatively...
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