New York Life Ins. Co. v. Davis, 2785.
| Decision Date | 25 November 1933 |
| Docket Number | No. 2785.,2785. |
| Parties | NEW YORK LIFE INS. CO. v. DAVIS et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
William H. Eckert and Smith, Buchanan, Scott & Gordon, all of Pittsburgh, Pa., for plaintiff.
J. Campbell Brandon, Brandon, Brandon & Ross, and Zeno Henninger, all of Butler, Pa., for defendants.
This is a suit in equity, in which the plaintiff is seeking to eliminate from three life insurance policies which it issued upon the life of the defendant Edward B. Davis, the disability and double indemnity provisions.
The case first came to the attention of the court on defendants' motion to dismiss the bill of complaint, because: (1) It discloses no ground of equitable relief; (2) the plaintiff has an adequate remedy at law. This court (McVicar, J.), on June 28, 1933, denied this motion. The case was then heard on bill, answer, and proofs. On these we find the following facts:
Findings of Fact.
1. The plaintiff is a mutual life insurance company, incorporated under the laws of the state of New York, and is a citizen of said state.
2. Edward B. Davis and Eleanor J. Davis are husband and wife, and citizens and residents of the commonwealth of Pennsylvania and of the Western District thereof. The Butler County National Bank & Trust Company of Butler is a banking corporation incorporated under the National Banking Act of the United States of America see 12 US CA § 21 et seq., and has its place of business in said Western District of Pennsylvania.
3. The amount in controversy in this case exceeds the sum of $3,000, exclusive of interest and costs.
4. On April 16, 1929, the plaintiff wrote its policy of life insurance No. 10,618,368 in the face amount of $10,000 on the life of Edward B. Davis, one of the defendants. The defendant Eleanor J. Davis is designated therein as beneficiary. A true and correct copy of said policy is attached to the bill of complaint.
5. As a prerequisite to the issuance by the plaintiff of the aforesaid policy, said Edward B. Davis made and signed an application to the plaintiff for such insurance. As a part of said application, said Edward B. Davis, on January 1, 1929, made answers to the plaintiff's medical examiner to questions contained in part II of the application, and signed part II of the application. A copy of said application, both parts I and II, is attached to and made part of said policy. The answers appearing in said application to the questions contained therein are the correctly recorded answers made to the respective questions by said Edward B. Davis. Included in the questions propounded to and answers made by said Edward B. Davis are the following:
In his answers to the questions prior to No. 10, said Edward B. Davis named no physician or practitioner nor any ailment or disease whatsoever.
6. Also in said application Edward B. Davis stated:
"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."
7. On August 16, 1929, the plaintiff wrote its policy No. 10,755,891, in the face amount of $5,000 on the life of Edward B. Davis, one of the defendants. The defendant Eleanor J. Davis is designated therein as beneficiary. A copy of said policy is attached to the bill of complaint.
8. As a prerequisite to the issuance by the plaintiff of policy No. 10,755,891, said Edward B. Davis made and signed an application to the plaintiff for such insurance. As a part of said application, said Edward B. Davis, on August 2, 1929, made answers to the plaintiff's medical examiner to questions contained in part II of the application, and signed said part II of the application. A copy of said application, both parts I and II, is attached to and made a part of said policy. The answers appearing in said application to the questions contained therein are the correctly recorded answers made to the respective questions by said Edward B. Davis. Included in the questions propounded to and answers made by said Edward B. Davis are the following:
In his answers to the questions prior to No. 10, said Edward B. Davis named no physician or practitioner nor any ailment or disease whatsoever.
9. Also in said application, Edward B. Davis stated:
"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."
10. On December 5, 1929, plaintiff wrote its policy of life insurance No. 10,878,497 in the face amount of $10,000 on the life of Edward B. Davis, one of the defendants. The defendant Eleanor J. Davis is designated therein as beneficiary. A copy of said policy is attached to the bill of complaint. On May 8, 1930, Edward B. Davis and Eleanor J. Davis assigned said policy to the Butler County National Bank, which subsequently was merged into the Butler County National Bank & Trust Company of Butler, the other defendant, and said assignment is still in force.
11. As prerequisite to the issuance by the plaintiff of said policy No. 10,878,497, said Edward B. Davis made and signed an application to the plaintiff for such insurance on August 20, 1929. As a part of said application, said Edward B. Davis on August 20, 1929, made answers to questions contained in part II of said application and signed said part II of the application. A copy of this application, both parts I and II, is attached to and made part of said policy. The answers appearing in said application to the questions contained therein are the correctly recorded answers made to the respective questions by said Edward B. Davis. Included in the questions propounded to and answers made by said Edward B. Davis are the following:
Below the questions and answers quoted above, Edward B. Davis in said application did not state that he had consulted or been examined or treated by any physicians or practitioners whatever within the past three years, except that he had been examined at Butler, Pa., by a New York Life examiner for a New York Life policy about two weeks before. In his answers to the questions prior to No. 4, said Edward B. Davis named no physician or practitioner whatsoever.
12. Also in said application, Edward B. Davis stated:
"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."
13. In fact the aforesaid answers of Edward B. Davis to questions in part II of each of the aforesaid applications, were false. Said Edward B. Davis had before January 1, 1929, been under observation and treatment in a hospital, had raised or spat blood, had consulted...
To continue reading
Request your trial
-
Terry v. New York Life Ins. Co.
...Life Ins. Co., 3 Cir., 93 F.2d 416, judgment vacated on other grounds in 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; New York Life Ins. Co. v. Davis, D.C.Pa., 5 F.Supp. 316; New York Life Ins. Co. v. Gresham, 170 Miss. 211, 154 So. 547, and see Guise v. New York Life Ins. Co., 127 Pa.Super. ......
-
Malloy v. New York Life Ins. Co.
...v. Hartle, 165 Md. 120, 166 A. 614, 91 A.L.R. 1466; Kaffanges v. New York Life Ins. Co., 1 Cir., 59 F.2d 475; New York Life Ins. Co. v. Davis et al., D. C., 5 F.Supp. 316, 319. The insured in his answer denies that he had concealed any material facts or that he had made any false or fraudul......
-
Equitable Life Assur. Soc. v. Deem
...Life Ins. Co v. Selkirk, 80 F.(2d) 553 (C.C.A. 5); Kaffanges v. New York Life Ins. Co., 59 F. (2d) 475 (C.C.A. 1); New York Life Ins. Co. v. Davis (D.C.) 5 F.Supp. 316, 319; Penn Mutual Life Ins. Co. v. Hartle, 165 Md. 120, 166 A. 614, 91 A.L.R. 1466; Greber v. Equitable Life Assur. Soc., 4......
-
New York Life Ins. Co. v. Bonasso
... ... the language considered in the Greber case is "very ... different from that here involved." In New York Life ... Ins. Co. v. Davis, D.C., 5 F.Supp. 316, on a clause identical ... with that here involved, it was held that, under the ... exception made, the disability and double ... ...