Greenbaum v. Columbian Nat. Life Ins. Co. of Boston

• Decision Date: 12 December 1932
• Docket Number: No. 84.,84.
• Citation: 62 F.2d 56
• Parties: GREENBAUM v. COLUMBIAN NAT. LIFE INS. CO. OF BOSTON, MASS.
• Court: U.S. Court of Appeals — Second Circuit

62 F.2d 56 (1932)

GREENBAUM v. COLUMBIAN NAT. LIFE INS. CO. OF BOSTON, MASS.

No. 84.

Circuit Court of Appeals, Second Circuit.

December 12, 1932.

Platt, Taylor & Walker, of New York City (Eli J. Blair, of New York City, of counsel), for appellant.

Reuben Myron Cohen, of New York City (Harry A. Gordon and Emanuel Sobel, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

On November 10, 1928, Arthur G. Greenbaum, a resident of New York, applied to the defendant, a Massachusetts corporation, for a policy of insurance upon his life. The application was in writing. The amount of insurance applied for was $50,000. The policy was issued November 16, 1928. On November 27, 1928, he made another application, which was in all respects now material the same as the first, for insurance to the additional amount of $2,000. This policy was issued November 28, 1928. He was examined by a physician acting for the defendant before the first policy was issued but the nature and extent of that examination does not appear. No other medical examination was made before the second policy was issued. He paid a first and a second quarterly premium on each policy, before his death occurred at St. Lukes Hospital on February 26, 1929, from cancer of the testicle which caused a brain hemorrhage. The defendant, upon the ground that Greenbaum was not in sound health at the time either policy was delivered, declined to pay the insurance and attempted to rescind both policies upon a tender of the premiums paid. Thereupon, the plaintiff, as administratrix of the estate of the deceased which was the beneficiary under each policy, brought suit in the state court in New York to enforce payment. The suit was removed to the District Court on the ground of diversity.

Both applications for insurance were made upon the express agreement: (1) "That the insurance hereby applied for shall not take effect until the issuance and delivery of the policy and the payment of the first premium thereon while the Proposed Insured is in sound health." In both, the deceased stated that he had no disease or disorder. In both, he stated that he had never "suffered from, taken treatment for, or consulted a physician for cancer." The following provision was made a part of each policy: "All statements made by the insured in the application shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid the policy or be used in defense to a claim under it unless contained in the written application and a copy of the same attached thereto." Each also provided that: "This policy shall be incontestable after one year during the lifetime of the Insured from date of issue except for non-payment of premium, subject, however, in case of misstatement of age to an adjustment of the insurance proportionate to the premium at the true age."

At the request of the defendant, the plaintiff's husband, who was acting for her generally in dealing with the defendant in attempting to collect the proceeds of these policies, sent to it, as a part of the proof of death, a certified copy of the official death certificate on file in the bureau of records, department of health, in the city of New York. This was introduced in evidence by the defendant and contained the statement that the duration of the last illness of Greenbaum was six months. The defendant also introduced expert testimony to the effect that he was afflicted with the cancer when the policies were delivered. The evidence tending to show that the deceased was suffering from cancer at the time the policy was delivered was not rebutted except by the testimony of the plaintiff, who was his mother, and that of one Fried, a business associate. They testified merely that he had not appeared to be ill or complained of illness to them.

It was undisputed that the death of the plaintiff's intestate was caused by cancer within three months after the date of each policy. It is likewise beyond dispute that the parties to the policies expressly agreed that the insurance would not take effect until the payment of the first premium was made while the proposed insured was in sound health. This was a valid condition upon the validity of the policies as contracts of insurance. Subar et al. v. New York Life Ins. Co. (C. C. A.) 60 F.(2d) 239. The undisputed payment by him of the first premiums showing their acceptance by the defendant; the delivery of the policies; the fact that these things took place after a physician had previously, in behalf of the defendant — made a physical examination and discovered no cancer or other disease would ordinarily be enough to establish prima facie the facts necessary to make the policies take effect as insurance contracts. Scharlach v. Pacific Mut. Life Ins. Co. (C. C. A.) 9 F.(2d) 317.

But in this case the certificate of death which had a tendency to show that the deceased was suffering from cancer six months before his death was evidence, rebuttable to be sure, in the nature of an admission by the plaintiff that the deceased was not in sound health when the policies were delivered. Hanna v. Connecticut Mutual Life Insurance Co., 150 N. Y. 526, 44 N. E. 1099; Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208, 167 N. E. 223.

When the plaintiff rested, as she did without calling any witnesses or introducing any more proof of sound health than that already indicated, the defendant called two doctors, who had never seen Greenbaum but who were qualified as experts of many years' experience with numerous cases of...