Columbian Nat. Life Ins. Co. v. Goldberg, 10317.
| Decision Date | 13 January 1947 |
| Docket Number | No. 10317.,10317. |
| Citation | 158 F.2d 971 |
| Parties | COLUMBIAN NAT. LIFE INS. CO. v. GOLDBERG. |
| Court | U.S. Court of Appeals — Sixth Circuit |
C. J. Hoyt, of Youngstown, Ohio (C. J. Hoyt and Hammond, Hoyt & Rand, all of Youngstown, Ohio, and Bailey Aldrich and Choate, Hall & Stewart, all of Boston, Mass., on the brief), for appellant.
W. P. Barnum, of Youngstown, Ohio (W. P. Barnum and Louis Gelbman, both of Youngstown, Ohio, on the brief), for appellee.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
Again, the Columbian National Life Insurance Company appeals from the judgment of the district court for the Northern District of Ohio with respect to the same life insurance policy previously involved in litigation brought to this court. In a declaratory judgment suit praying adjudication that the insured appellee, Abraham Goldberg, having become wholly disabled within the meaning of the policy, was entitled to the benefits of its waiver-of-premiums provisions, we distinctly held that Goldberg was entitled to the waiver of all premiums becoming due after July 1, 1939, so long as he remains wholly disabled by bodily injury or disease from permanently and continuously engaging in any occupation whatever for remuneration and profit. Columbian Nat. Life Ins. Co. v. Goldberg, 6 Cir., 138 F.2d 192; certiorari denied 321 U.S. 765, 64 S.Ct. 524, 88 L.Ed. 1062.
The appellee has remained so disabled; yet, this time, the insurance company contends that the district court erred in holding that the insured be required to credit on his policy loan premiums paid by him after the institution of the declaratory judgment suit on the alleged grounds that Pennsylvania law governs; that thereunder voluntary payments cannot be recovered, payments made under protest being nonetheless voluntary; and that "payment by a disabled insured of a premium which he says should have been waived, made in order to keep his policy from lapsing in case he is wrong in believing himself disabled, is under Pennsylvania law a voluntary and hence irrevocable payment."
Sebastianelli v. Prudential Insurance Co. of America, 337 Pa. 466, 470, 12 A.2d 113, is the leading authority cited by appellant. But, there, the insured merely sought unsuccessfully to recover premiums paid by him during the four-year period between the date of his accident and the time of institution of his suit. In the instant case, the premiums were paid while litigation to determine liability for them was pending. Nor was Astrin v. Metropolitan Life Ins. Co., 341 Pa. 120, 17 A.2d 887, also cited by appellant, such a suit as we have here. Likewise, Feigenbaum v. Prudential Insurance Co., 144 Pa.Super. 412, 413, 420, 19 A.2d 542, 546, involved premiums paid before suit was brought. Indeed, there was an intimation that premium payments made after suit was brought might stand on a different basis from "voluntary premium payments made after disability began and before suit was brought."
It is true that, in the case from the Third Circuit Court of Appeals cited by appellant, New York Life Ins. Co. v. Levine, 148 F.2d 313,...
To continue reading
Request your trial
-
Kentucky Home Mut. Life Ins. Co. v. Duling
...54 S.W.2d 947, 86 A.L.R. 382; Schaad v. New York Life Ins. Co., D.C.E. D.Tenn., 79 F.Supp. 463, 467. See also Columbian Nat. Life Ins. Co. v. Goldberg, 6 Cir., 158 F.2d 971, certiorari denied 331 U.S. 820, 67 S.Ct. 1310, 91 L.Ed. 1837; New York Life Ins. Co. v. Talley, 8 Cir., 72 F.2d 715; ......
- Pollack v. Dussourd
-
Voulgaris v. Press, 1659.
...Payment, § 133, et seq.1 It is true, as appellant points out, that the rule is subject to many exceptions, Columbian Nat. Life Ins. Co. v. Goldberg, 6 Cir., 158 F.2d 971, certiorari denied 331 U.S. 820, 67 S.Ct. 1310, 91 L.Ed. 1837, but there is nothing in the record before us which would p......