Garman v. Metropolitan Life Ins. Co., No. 9837.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: MARIS, GOODRICH and KALODNER, Circuit
• Citation: 175 F.2d 24
• Parties: GARMAN v. METROPOLITAN LIFE INS. CO.
• Docket Number: No. 9837.
• Decision Date: 18 May 1949

175 F.2d 24 (1949)

GARMAN
v.
METROPOLITAN LIFE INS. CO.

No. 9837.

United States Court of Appeals Third Circuit.

Argued April 7, 1949.

Decided May 18, 1949.

175 F.2d 25

Nicholas Conover English, Newark, N. J. (McCarter, English & Studer, Newark, N. J., on the brief), for appellant.

Ernest Fasano, Red Bank, N. J. (Quinn, Doremus, McCue & Russell, Red Bank, N. J., on the brief), for appellee.

Before MARIS, GOODRICH and KALODNER, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, Anne Garman, who is the widow of J. Harry Garman and a resident of New Jersey, brought an action at law in the Supreme Court of New Jersey to recover the amount alleged to be due her as beneficiary on a life insurance policy issued to her husband by the defendant, Metropolitan Life Insurance Company, a corporation of New York. The defendant removed the action to the United States District Court for the District of New Jersey and filed an answer and counterclaim in that court. The defense set up by the answer was that the policy had been procured by fraud and was, therefore, void. In the counterclaim the defendant sought rescission of the policy upon the ground of fraud in that the answers by the insured to certain questions in the application for insurance were false in fact, were material to the risk and were relied upon by the defendant in issuing the policy. The fraud alleged in the answer was of the type described in New Jersey as "legal" fraud while that set up in the counterclaim was what is known in that state as "equitable" fraud, i. e., fraud formerly cognizable only in the Court of Chancery.¹

The plaintiff filed a demand for jury trial pursuant to Civil Procedure Rule 38(b), 28 U.S.C.A., whereupon the defendant moved to strike the demand and asked that the court sit without a jury to determine in limine the issues raised by the counterclaim. The district court denied the motion, correctly holding, upon the authority of our decision in Ettelson v. Metropolitan Life Ins. Co., 3 Cir., 1943, 137 F.2d 62, certiorari denied 320 U.S. 777, 64 S.Ct. 92, 88 L.Ed. 467,² to which we adhere, that the counterclaim should be treated as a supplemental answer rather than as a pleading seeking affirmative relief, and that the issues of fraud which it raised should be submitted to the jury at the trial of the case rather than be decided by the court without a jury prior to trial, D.C., 7 F.R.D.

175 F.2d 26

473. The case thereafter came on for trial on the issues raised by the complaint, answer and counterclaim. At the trial the uncontradicted evidence disclosed the following facts

The insured made application for the policy in suit on February 21, 1944. In the preceding autumn he had accompanied his wife when she had visited Dr. Maurice Mintz, a gynecologist, in New York City. In the course of conversation at that time the insured complained to Dr. Mintz about an itch from which he was suffering and Dr. Mintz suggested that he go to the consultation service at the Mt. Sinai Hospital in New York City for a checkup. The insured took Dr. Mintz's advice and went to the Mt. Sinai Hospital on October 8, 1943 upon which occasion he was examined by Dr. H. Evans Leiter, an urologist, as well as by seven other physicians connected with the hospital's consultation service. At Dr. Leiter's suggestion the insured came back to the Mt. Sinai Hospital on the morning of November 12, 1943 for a cystoscopy and bilateral retrograde pyelography which were completed during the day and he left the hospital in the late afternoon. These examinations disclosed an abnormal condition of both kidneys which Dr. Leiter reported by letter to Dr. Mintz on November 24, 1943. In addition to reporting to Dr. Mintz, Dr. Leiter talked to the insured, telling him that he should have kidney blood tests taken every three months and that he should not eat much protein but should drink plenty of water. Subsequent to his making application for the insurance policy in suit the insured again saw Dr. Leiter on March 15, 1944, March 30, 1944, February 21, 1945 and March 16, 1945. He died on November 21, 1945 at St. Luke's Hospital, New York City. The principal cause of death appearing upon the records of the hospital was chronic glomerulonephritis, a disease of the kidneys.

In his application for the policy of insurance in suit the insured had answered "none" to question 23 which inquired: "What clinics, hospitals, physicians, healers or other practitioners, if any, have you consulted or been treated by, within...