Jannenga v. Nationwide Life Insurance Co.

• Decision Date: 09 March 1961
• Docket Number: No. 15896.,15896.
• Citation: 288 F.2d 169,109 US App. DC 385
• Parties: Roy Louis JANNENGA, Appellant, v. NATIONWIDE LIFE INSURANCE CO., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 385, 288 F.2d 169 (1961)

Roy Louis JANNENGA, Appellant, v. NATIONWIDE LIFE INSURANCE CO., Appellee.

No. 15896.

United States Court of Appeals District of Columbia Circuit.

Argued December 9, 1960.

Decided March 9, 1961.

Mr. C. William Tayler, Washington, D. C., for appellant.

Mr. John E. Powell, Washington, D. C., with whom Messrs. Arthur P. Drury, John M. Lynham, and Henry H. Paige, Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, and WASHINGTON and BURGER, Circuit Judges.

BURGER, Circuit Judge.

Appellant's daughter was born March 25, 1956, and on March 27, 1956, appellant made application to appellee Nationwide for insurance on her life. After her death on June 26, 1957, appellant sued for the sums due under the policy. Appellee defended on the ground that appellant had falsely answered questions in the application with respect to other insurance applications pending or contemplated on the life of the insured. The evidence showed that appellant had attended law school and worked as an insurance agent, that he started inquiring about insurance on the life of his daughter several months before she was born, and that two days after her birth he applied to appellee Nationwide for $10,000 insurance on her life. The application which he signed asked whether any other insurance on the child was pending or contemplated, to which the answer "none" appeared. But appellant's own evidence showed that he had applied the previous day to another company for $5,000 life insurance on the life of his daughter, and that an application for $10,000 insurance on her life was made with yet another company the same day as the Nationwide application. One month later he applied to a fourth company for $10,000 in life insurance on his daughter's life. In none of these applications did he disclose the pendency of applications with the other companies, although each application called for that information. Appellant testified that each of the life insurance agents told him that the questions referred only to delivered policies, and that the negative answer in the Nationwide application was entered by the agent after such explanation. Ultimately appellant obtained $35,000 insurance on the life of his infant daughter. At the close of appellant's case the District Court directed a verdict for the appellee on the ground of material misrepresentation in the application.

The questions presented here are:

(1) Was the trial court bound to notice and apply Ohio or Maryland law, although that law was not relied on by appellant?

(2) If not, were the misrepresentations a bar to recovery on the contract of insurance under the law of the District of Columbia?

(1)

At the trial appellant's counsel relied upon "our own District of Columbia opinions." Although he cited an Illinois case on a point of general law, he did not refer to the case law or statutes of Ohio or Maryland in his argument. Nevertheless, appellant now contends that the final act necessary to completion of the contract took place in Ohio and that the trial court should have applied an Ohio statute; on trial he emphasized that the contract took effect when the application was signed in Maryland. In the alternative he urges that the contract was made in Maryland, and in either case that the trial court erred in applying local law.¹

This court has stated that federal courts "will take judicial notice of the law of the several states * * * whether pleaded or not * * *." Boland v. Love, 1955, 95 U.S.App.D.C. 337, 340, 222 F.2d 27, 31. Accord, Moore v. Pywell, 1907, 29 App.D.C. 312, 9 L.R.A., N.S., 1078. And in an oft quoted passage, the Supreme Court said that "the law of any State of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof." Lamar v. Micou, 1885, 114 U.S. 218, 223, 5 S.Ct. 857, 859, 29 L.Ed. 94. (Emphasis added.)

The Third Circuit has taken the view that this means that "the appropriate law must be applied in each case and upon a failure to do so appellate courts should remand the cause to the trial court to afford it opportunity to apply the appropriate law, even if the question was not raised in the court below." United States v. Certain Parcels of Land, 3 Cir., 1944, 144 F.2d 626, 630, 155 A.L. R. 253. See also Parkway Baking Co. v. Freihofer Baking Co., 3 Cir., 1958, 255 F.2d 641. In so doing, the Third Circuit has relied upon Pecheur Lozenge Co. v. National Candy Co., 1942, 315 U.S. 666, 62 S.Ct. 853, 86 L.Ed. 1103.

In the Pecheur case plaintiff sued for trademark infringement. The trial court, proceeding on the theory that this was a suit under the Trademark Act, 15 U.S.C.A. § 1051 et seq., rendered judgment for plaintiff. On appeal the Court of Appeals reversed. The Supreme Court agreed that no cause of action was stated under the Trademark or Copyright statutes, but remanded to the trial court for a determination whether a cause of action was stated under the local law.

While the Pecheur case shows that appellate courts may remand a case for consideration of the applicability of state law not brought to the attention of the trial court, it need not be read as always requiring such a result. On this view the statement in Lamar v. Micou, supra, means simply that a federal court cannot refuse to apply the law of a state other than the forum solely on the ground that it was not affirmatively pleaded or proved.

The Tenth Circuit took this view in Prudential Ins. Co. of America v. Carlson, 10 Cir., 1942, 126 F.2d 607. Plaintiff sued on an insurance policy and the court awarded attorney's fees as part of the damages, in accord with the law of the forum. On appeal the court stated that the trial court had erred in allowing the fees, since that issue should have been decided under the law of New Jersey. But the court refused to reverse the award, on the ground that at no point in the proceedings prior to appeal had the defendant challenged the right to the award. The court stated that while federal courts take judicial notice of state law, "one relying upon such a law is not relieved from calling it to the attention of the court at a proper time." Id. at page 611.

Similarly, in Great Am. Ins. Co. v. Glenwood Irr Co., 8 Cir., 1920, 265 F. 594, the trial court refused a charge requested by the plaintiff. On appeal, plaintiff contended that this charge was proper under the law which he claimed the trial court should have applied. The Eighth Circuit held that since the statute of the other jurisdiction had not been brought to the attention of the court, the charge was not error.

Recently, in Smith v. Pasqualetto, 1 Cir., 1957, 246 F.2d 765, the First Circuit implied a like result. There plaintiff had brought a personal injury action, and, after a favorable verdict, judgment n. o. v. had been entered for the defendant and on the ground the statute of limitations barred the action. On appeal the plaintiff for the first time raised an applicable statute tolling the period of limitations because the last day fell on Sunday. The court said

"Although there are situations in which the overall needs of justice require that parties on appeal be denied recourse to rules of law to which the attention of the

...