Ettelson v. Metropolitan Life Ins. Co., No. 9273.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: MARIS, GOODRICH and O'CONNELL, Circuit
• Citation: 164 F.2d 660
• Decision Date: 18 November 1947
• Docket Number: No. 9273.
• Parties: ETTELSON et al. v. METROPOLITAN LIFE INS. CO.

164 F.2d 660 (1947)

ETTELSON et al.
v.
METROPOLITAN LIFE INS. CO.

No. 9273.

Circuit Court of Appeals, Third Circuit.

Argued April 21, 1947.

Decided November 18, 1947.

164 F.2d 661

David Stoffer, of Newark, N. J. (Frazer, Stoffer & Jacobs, Arthur T. Vanderbilt and G. Dixon Speakman, all of Newark, N. J., on the brief), for appellants.

George W. C. McCarter, of Newark, N. J. (Nicholas Conover English, of Newark, N. J., on the brief) for appellee.

Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.

MARIS, Circuit Judge.

This action was originally brought by the plaintiffs in the Supreme Court of New Jersey to recover amounts alleged to be due them as beneficiaries on four policies of life insurance issued on September 14, 1938 by the defendant, Metropolitan

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Life Insurance Company, on the life of Richard Ettelson. The policies were delivered in New Jersey and took effect as contracts there. They are, therefore, governed by the law of that state. The policies comprised one for $5,000 naming the insured's son Adrian as beneficiary, one for $10,000 naming the insured's daughter Harriet as beneficiary, and two aggregating $25,000 naming the insured's daughter Doris as beneficiary. The insured reserved the right to change the beneficiaries. The insured died on July 11, 1939 of a coronary thrombosis

The case was removed by the defendant to the United States District Court for the District of New Jersey and a jury trial was demanded by the plaintiffs. The defendant filed an answer setting up as a defense to the action that the policies were procured by fraud in the form of wilful misstatements of material facts by the insured. Specifically, the answer, as amended at the trial, alleged that the insured had answered "No" to question 11(c) in Part B of the application for the insurance, which question asked: "Have you ever had any ailment or disease of * * * The Stomach * * *?". The amended answer also alleged that the insured had answered "Yes. Cold, 1 attack, Jan. 1938. about 1 week. Not sick. rest at home. Cured. — Dr. Levy. Passaic." to question 12(g) which asked "Have you consulted a physician for any ailment or disease not included in your above answers?". The amended answer further alleged that the insured had answered "None" to question 13 which asked "What clinics, hospitals, physicians, healers or other practioners, if any, not named above, have you consulted or been treated by, within the past five years? If none, so state." and that he had signed a concluding certificate to the application reading "I hereby certify that: (1) I have read the answers to the questions in Part A and Part B hereof, before signing, (2) they have been correctly written, as given by me, (3) they are full, true and complete, and (4) there are no exceptions to any such answers other than as stated herein." The answer, as amended, set up as a defense that "Whereas, in fact the said insured had had a disease of the stomach, namely, a post-pyloric penetrating ulcer, in January and February of 1938, and whereas, in fact the said insured had, in addition, consulted physicians for an ailment or disease of the stomach, namely, Doctors Levy and Roemer, in January and February, 1938. Wherefore, these statements of the insured in answer to questions 11(c), 12(g), 13 and the concluding question beginning, `I hereby certify,' * * * or some one or more of them, were false and fraudulent in that he failed to disclose such disease, consultation and treatment, of which he had full knowledge, by reason whereof the said policy is void."

The defendant also filed a counterclaim asserting that the policies were procured by fraud in that they were issued as a result of material statements made by the insured which were false in fact and which, therefore, entitled the defendant to the rescission of the policies, and that the defendant was without an adequate remedy at law. The counterclaim asked the court to restrain the further prosecution of the action at law and to decree the rescission of the policies. The counterclaim set out in paragraphs 9, 10 and 11 the answers to questions 11(c), 12(g) and 13, respectively, which we have quoted, and alleged that "At the time of, and prior to his said application for insurance, the said Richard Ettelson was in unsound health and was suffering from a number of serious ailments and diseases and was consulting physicians in connection therewith. He was consulting Dr. Herman Levy for an affection of his heart from which he suffered and from which he subsequently died. He was also consulting Dr. Levy for ulcers of the stomach. In connection with his medical treatments, x-ray examinations were made of his stomach which disclosed that he was suffering from ulcers of the stomach and an electrocardiogram was made of his heart which disclosed a serious heart condition.¹ In

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the said master application for the said policies of insurance, he failed to disclose any of these facts which were material to his application for insurance, and which, if known by the counterclaimant, would have resulted in a refusal by said counterclaimant to issue the said policies of insurance. The statements which he made in his said master application for said policies specifically referred to in paragraph 8 and 9 of this counterclaim were false in fact, and the statements which he made in his said application, specifically referred to in paragraphs 10 and 11 of this counterclaim were false in fact in that he failed to disclose the material facts in those two paragraphs referred to."

The plaintiffs moved to dismiss the counterclaim. The district court denied the motion and ordered that the issues raised by the counterclaim be heard before the trial of the plaintiffs' action. D.C. 42 F. Supp. 488. On appeal the latter order was held to be appealable as being in the nature of an injunction,² and was reversed by this court. 3 Cir., 137 F.2d 62. We held that the issue of fraud in the procurement of the policies which was raised by the counterclaim was provable in the district court as a defense to the plaintiffs' action upon the policies and was, therefore, an issue which must be submitted to the jury and not decided in limine by the court.

The question involved on the former appeal undoubtedly arose from the fact that in New Jersey, contrary to the situation in the federal judicial system, the rules of law and equity are administered in separate courts with the result that in actions at law purely equitable defenses are not available. Accordingly in actions upon policies of life insurance in the New Jersey courts of law only that kind of fraud is available as a defense which involves such wilful misstatement of material facts as would support a common law action of deceit.³ Such fraud the New Jersey courts have called "legal fraud". The New Jersey Court of Chancery, however, recognizes that honest misrepresentations of material facts in the application for a policy may constitute a fraud upon the insurance company which will entitle the company to a decree rescinding the contract.⁴ Such misrepresentations the Court describes as "equitable fraud". Accordingly in New Jersey it is necessary for an insurance company which seeks to rely upon fraud of this latter type to cast its defense into the form of a suit in the Court of Chancery for the rescission of the policy which is being sued upon at law.

It was doubtless in the light of the New Jersey procedure that the defendant's counterclaim in the present case was drawn. In accordance with that practice the counterclaim alleged material representations which were merely false in fact, whereas the amended answer alleged material representations which were false and fraudulent to the knowledge of the insured. Our holding on the former appeal was that any and all species of fraud may in the federal courts, contrary to the New Jersey practice, be submitted directly to the jury as a defense to the plaintiffs' recovery upon the insurance policies and that preliminary consideration of the counterclaim with a view to the entry of a decree cancelling the policies sued on was not in accord with federal practice. Our decision necessarily involved treating the counterclaim, under Federal Rules of Civil Procedure, rule 8(c), 28 U.S.C.A. following section 723c, as a supplemental answer to the plaintiffs' complaint and not as a pleading seeking affirmative relief.⁵

Following the remand of the case it was brought on for trial before a jury in the

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district court. At the trial the insured's physician, Dr. Levy, testified that he had treated the insured between January 6 and February 14, 1938 but had only a record of the dates and not of any diagnosis or treatment. Another physician, Dr. Roemer, testified on behalf of the defendant that he had made an X-ray examination of the insured at the request of Dr. Levy on January 11 and 12, 1938 and had sent a report to Dr. Levy, making a diagnosis of a penetrating post-pyloric ulcer. A third physician, Dr. Cohen, testified that at the request of Dr. Levy he had made a blood count of the insured and had sent the report of it to Dr. Levy. Dr. Crohn, a stomach specialist, testified that Dr. Levy referred the insured to him on March 27, 1939. The trial judge refused to permit Dr. Crohn to testify concerning the history given to him at that time by the insured...