COLUMBIAN NAT. LIFE INS. COMPANY v. Goldberg

• Decision Date: 31 August 1943
• Docket Number: No. 9464.,9464.
• Citation: 138 F.2d 192
• Parties: COLUMBIAN NAT. LIFE INS. COMPANY v. GOLDBERG.
• Court: U.S. Court of Appeals — Sixth Circuit

138 F.2d 192 (1943)

COLUMBIAN NAT. LIFE INS. COMPANY v. GOLDBERG.

No. 9464.

Circuit Court of Appeals, Sixth Circuit.

August 31, 1943.

Bailey Aldrich, of Boston, Mass. (C. J. Hoyt, of Youngstown, Ohio, and Bailey Aldrich and F. H. Nash, both 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 HICKS, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The appellee, Abraham Goldberg, filed on December 11, 1939, a declaratory judgment suit in the Common Pleas Court of Mahoning County, Ohio, against appellant, The Columbian National Life Insurance Company, a Massachusetts corporation. On the petition of appellant, the cause was removed to the United States District Court for the Northern District of Ohio.

The appellant insurer issued on March 22, 1922, an ordinary life policy insuring the life of appellee for forty thousand dollars. This policy contained a waiver-of-premium clause, which provided: "If after one year's premium shall have been paid on this Policy and before default in the payment of any subsequent premium the Insured shall furnish to the Company due proof that, before attaining the age of sixty, he has become wholly disabled by bodily injury or disease so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, thereupon the Company will, by endorsement hereon, waive the payment of the premiums which thereafter may become due under this Policy during the continuance of the said total and permanent disability of the Insured. In making any settlement under this Policy the Company shall not deduct any part of the premium so waived, and the values in the above table shall increase from year to year in the same manner as though any premium waived under this provision had been paid in cash."

The petition in the declaratory judgment suit prayed an adjudication that appellee had become wholly disabled and thereby permanently and continuously unable to engage in any occupation whatever for remuneration and profit since July 1, 1938; that he was born on December 15, 1880, and that for the purpose of the policy, that date, rather than December 15, 1878, which was his birthday stated in the policy, determine his age; and that he is entitled to the benefits of the waiver-of-premiums provisions and is not obligated to pay any premiums. The petition concluded with a prayer for general relief.

In answer, appellant pleaded statutory limitation in bar, and laches and estoppel, but the main defense set up was that appellee had not become wholly and permanently disabled within the terms of the policy prior to attaining the age of sixty.

By stipulation of the parties, a trial by jury was waived and the case went to trial to the United States District Judge on June 3, 1942. Several witnesses, including the appellee, testified and much documentary evidence was introduced.

The District Court found that the cause of action had accrued within ten years preceding commencement of the action and was, therefore, not barred; and that the appellee had not been guilty of laches and was therefore not estopped. Upon the main issue, the District Court found that the "plaintiff was born on December 15, 1878; that on July 1, 1938, plaintiff became wholly disabled by bodily disease so that he is and has been since said July 1, 1938, permanently and continuously unable to engage in any occupation whatever for remuneration or profit; and that plaintiff furnished defendant written proof of said disability, as required by said policy, on July 1, 1939."

The District Court concluded, as a matter of law, that the plaintiff the appellee "is entitled to all of the benefits provided for under that portion of the policy entitled `Waiver of Premiums,'" and that he "is and has been since July 1, 1938, entitled to all the benefits and provisions" of the policy. It was further decreed that "judgment be and is hereby rendered in favor of plaintiff as against defendant, as above set forth," and that costs be taxed against the defendant. The appellant excepted to all of the "findings, judgments, orders and decrees" of the District Court.

Prior to entry of the foregoing findings of fact, conclusions of law, and judgment, the District Court filed on August 11, 1942, a memorandum opinion which, in view of the argument at bar, will be quoted in part to reveal the reasoning upon which the court found that December 15, 1878, was the date of birth of the appellee:

"As to the date of birth, the evidence is in hopeless conflict. The plaintiff is illiterate. He is unable to read except in a most limited way. He left home at an early age and came to this country before he was of legal age. There is no authentic and controlling proof as to his date of birth. The various records of important events in the plaintiff's life show different ages or dates of birth. It seems to the court that such variation was due to the general uncertainty and to the plaintiff's illiteracy rather than to any evil design or disregard for truth. The age asserted by the plaintiff was supported by the evidence of his older brother. The best piece of documentary evidence was no doubt the record of naturalization. If an administrative agency had to establish the date of birth, it would probably be guided by that record rather than by the record of any other event. The policy sued on in this action, however, established the date December 15, 1878. Plaintiff, in the petition, asked reformation to show a later date of birth, and the defendant contends for the establishment of an earlier date of birth. There is no consistency in the evidence on either side. The plaintiff's evidence shows different dates and so does the evidence of the defendant. In spite of the doubts as to the date named in the policy, the court is not supplied with clear and convincing proof as to any other date. In this set of circumstances the court feels constrained to allow that date to stand which the parties accepted when the policy was made. It is the opinion of the court that the rights of the parties should be controlled by the date given in the policy. The insurance company knew or should have known the limits of the plaintiff's knowledge and his want of education at the time of issuing the policy. It should have satisfied itself then as to the correct age.

"Measuring from the date of birth given in the policy, the disability established by the evidence occurred prior to the plaintiff's sixtieth birthday."

There would seem to be no occasion for a review of the confusing and conflicting evidence. As stated by the District Judge, the appellee's claim that he had not reached sixty years in age on July 1, 1938, was supported by the testimony of his elder brother. This was substantial evidence and there was other substantial evidence to the same effect, though contradictory of documentary evidence in his naturalization record and of certain other documents. This court is not concerned with the preponderance of the evidence. Findings of fact of a district court must not be set aside, unless clearly erroneous. Federal Rules of Civil Procedure rule 52(a), 28 U.S.C.A. following section 723c. It is true that in cases cited by appellant it has been held that records in naturalization proceedings cannot be collaterally impeached. Bell v. State of Ohio, 7 Ohio App. 185; United States v. Nechman, D.C.E.D.Mich., 183 F. 788; United States v. Aakervik, D.C.Or., 180 F. 137. In the Ohio case, the naturalization record which was held not subject to collateral attack was introduced to show the qualification of a grand juror to sit on the grand jury which returned the indictment in a criminal case. In the two Federal District Court cases cited, the proceedings were for revocation and annulment of citizenship, granted in previous naturalization proceedings in state courts. These three decisions do not support the argument that, in a controversy in which no question of citizenship is involved, the record in naturalization proceedings must be...