New York Life Ins. Co. v. Goerlich

Decision Date12 March 1926
Docket NumberNo. 4191.,4191.
Citation11 F.2d 838
PartiesNEW YORK LIFE INS. CO. v. GOERLICH.
CourtU.S. Court of Appeals — Sixth Circuit

Francis J. Wright, of Columbus, Ohio (Louis H. Cooke, of New York City, Arnold & Wright, of Columbus, Ohio, and Ritter & Schminck, of Toledo, Ohio, on the brief), for plaintiff in error.

Silas E. Hurin, of Toledo, Ohio (Hoke Donithen, of Marion, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

This is an action on an insurance policy for $5,000, issued April 28, 1922, upon the life of Alpha S. Goerlich, who died August 2, 1922. There was a judgment in the District Court for the beneficiary, wife of the insured. The defense was false representations material to the risk, inducing the company to issue the policy. The refusal of the court to instruct the jury to return a verdict for defendant on that ground is one of the assignments of error. Before discussing it we refer to an affirmative plea of plaintiff, claimed by her to constitute a bar to the introduction in evidence of the application for insurance, which contained the representations relied upon by defendant.

On November 16, 1922, plaintiff, through an attorney, requested of defendant a certified copy of the application. This request was declined, by reason of which it is argued, under sections 9387, 9388, 9389, General Code of Ohio,1 that the application was inadmissible in evidence. So far as we have been able to ascertain — and indeed it seems to be admitted — life insurance companies were not required in Ohio, prior to the enactment of this statute, to attach to a policy of insurance or to furnish to the insured a copy of the application therefor. But see also G. C. § 9420 (3). The manifest purpose of the statute was to place in the hands of the policy holder a copy of his application for the policy. The several sections are to be construed in pari materia. If they are to be regarded as separately applicable to all policies, rather than applicable to different policies so as to effectuate the general purpose indicated, the requirements would seem to be duplicative, since the third section accomplishes, as to policies issued after its enactment, the design intended to be effected under the preceding provisions. There has been no construction of the act by the Supreme Court of the state. It is our view that sections 9387 and 9388 were intended to apply to policies in existence at the time of the enactment, and section 9389 to all future policies as of the dates of issuance thereof. We accordingly hold that failure to comply with the request of November 16th did not operate as a bar to the introduction in evidence of the application, a photostatic copy of which was attached to the policy when issued and was so attached at the time the request was made.

Coming, then, to the question which we think decisive of the case, i. e., whether the insured made false and fraudulent representations of fact material to the risk inducing the company to issue the policy, we are met with a statute which provides:

"No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer." Gen. Code, § 9391; R. S. § 3625; 70 Ohio Laws, 97-99 (April 2, 1873).

This was held to be a constitutional enactment in Insurance Co. v. Warren, 21 S. Ct. 535, 181 U. S. 73, 45 L. Ed. 755.

Defendant pleaded and proved that the application on which this policy was issued contained the following questions and answers:

"9. No insurance, no application for insurance, or for the reinstatement of insurance, on my life, has ever been declined except as follows: (If none, say none.) No."

"7-2. Has any life insurance company or society ever examined you, either on an application for insurance, for reinstatement of insurance, or for any other reason, without issuing or reinstating such insurance? A. No."

"9. E. What physician or physicians, if any, not named above, have you consulted or been treated by, within the last five years and for what illness or ailment? (If none, so state.) None."

It is claimed that these answers were untrue, and that their patent falsity, as shown in the evidence, carried an implication of fraud, except for which the policy would not have been issued.

It appears that Huhn, an agent for defendant, in conjunction with Knauss, an agent of the Ohio State Life Insurance Company, secured Goerlich's application, and that Knauss informed Huhn that he (Goerlich) had "some heart trouble." Huhn testified that he asked Knauss whether his company had issued a policy, to which the latter replied, "I don't think they have;" that he knew Knauss represented the Ohio Life; on visiting Goerlich at his home, he said, "I guess you know what we are here for, so there was not much of a conversation took place;" and "Mr. Goerlich said nothing to me about heart trouble — just Mr. Knauss." The witness admitted that he assumed he would not have been called on to write the policy if Knauss could have written it in his own company. Another agent for the Ohio Life testified that he called on Huhn at his office, "explained to him that I had written this man Goerlich, and he was rejected in our company."

It was proved by defendant that Goerlich was examined in 1921 at the instance of an agent of the Equitable Life of Iowa for a policy of $10,000, and rejected as noninsurable. The examination by two physicians disclosed, as they said, organic heart murmurs and a hypertrophied heart, with an aortic stenosis, which is an enlarged heart...

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3 cases
  • Mutual Health & Benefit Ass'n v. Cranford
    • United States
    • Mississippi Supreme Court
    • 15 Octubre 1934
    ... ... v. Maryland Casualty Co., 193 F. 55; March v ... Metropolitan Life Ins. Co., 186 Pa. 629, 65 Am. St. Rep ... 887; Penn Mut. Life Ins. Co ... v ... Bank of Timmonsville, 139 F. 101; New York Life Ins ... Co. v. Wertheimer, 272 F. 730; Mutual Life v. Hurni ... and definite ... New ... York Life Ins. Co. v. Goerlich, 11 F.2d 838; ... Missouri State Life Ins. Co. v. Dossett, 265 S.W ... ...
  • New York Life Ins. Co. v. Wittman
    • United States
    • U.S. District Court — Northern District of Ohio
    • 2 Febrero 1993
    ...his false statements is so self-evident that their materiality should be presumed as a matter of law. See e.g., New York Life Ins. Co. v. Goerlich, 11 F.2d 838 (6th Cir.1926) (failure to apprise insurer of previous application rejection by another insurer due to heart condition held "materi......
  • Jude v. Prudential Insurance Company of America
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 6 Marzo 1969
    ...Finkle v. Western & Southern Life Insurance Co., 111 Ohio App. 407, 172 N.E.2d 311, 14 Ohio O.2d 416. We find New York Life Insurance Co. v. Goerlich, 11 F.2d 838 (6th Cir.), relied upon by the insurance company, to be distinguishable on its facts from the present case. All five of the fals......

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