Peake v. Lincoln Nat. Life Ins. Co.
| Decision Date | 22 October 1926 |
| Docket Number | No. 7330.,7330. |
| Citation | 15 F.2d 303 |
| Parties | PEAKE et al. v. LINCOLN NAT. LIFE INS. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Benjamin M. Powers, of Kansas City, Mo. (Francis M. Hayward and Clarence L. Hogin, both of Kansas City, Mo., on the brief), for appellants.
William C. Michaels, of Kansas City, Mo. (Henry I. Eager, of Kansas City, Mo., D. B. Ninde and F. B. Shoaff, both of Ft. Wayne, Ind., and Haff, Meservey, Michaels, Blackmar & Newkirk, of Kansas City, Mo., on the brief), for appellee.
Before LEWIS, Circuit Judge, and TRIEBER and KENNAMER, District Judges.
The Lincoln National Life Insurance Company, an Indiana corporation, appellee here, brought this suit in the court below on October 23, 1924, against Annie K. Peake and Benefit Building & Loan Association, a Missouri corporation. The bill alleges that on July 5, 1923, George L. Peake made an application in writing to plaintiff for a $7,000 policy of life insurance in favor of his wife as beneficiary; that the applicant made certain false and untrue statements in his application in answer to questions therein contained, and thus concealed from plaintiff his excessive use of intoxicating liquors and the fact that he had taken treatment on account of such excessive use and that he had consulted physicians about his mental derangement and nervousness and that he had been discharged by his employer on account of his use to excess of alcoholic stimulants; that he further concealed the fact that in the preceding spring he had been a patient in a sanitarium and there treated for alcoholism and mental trouble and nervousness; that the questions propounded to applicant in said application made direct inquiry of him whether he had used alcoholic stimulants to excess and he answered in the negative; that the matters inquired about were material to the risk and the applicant willfully and fraudulently made untrue answers thereto; that plaintiff, believing said questions had been truly answered relied thereon and was induced thereby to issue its policy on the life of said George L. Peake, dated July 5, 1923, and the same was delivered to him on August 3, 1923, at which time he paid the first annual premium therefor, and thus by fraud and deceit of the said Peake plaintiff was induced to issue its said policy; that the insured committed suicide on July 20, 1924; that Benefit Building & Loan Association claims some interest in the policy and the right of possession thereof, the extent thereof being unknown to plaintiff; that the policy is in the hands of one or the other of the defendants and that if the same remains in their hands plaintiff is liable to be vexed with one or more suits based on the policy at some remote time after the period of contest mentioned in the policy has expired; that prior to the bringing of suit plaintiff tendered to each of the defendants the premium that had been paid on the policy with lawful interest thereon and the same was refused. Plaintiff asked that the policy be brought into court and that it be canceled. On the next day, October 24, Mrs. Peake, beneficiary named in the policy and one of the appellants here, brought an action in the State court of Missouri against the insurer to recover the amount named in the policy, she having theretofore made proof of death. The insurer at once removed that case to the Federal court, in which it had filed its bill, and it filed its answer there to Mrs. Peake's complaint, setting up in defense the same facts that were stated in the bill. It also filed its supplemental bill in its equity suit, in which it alleged that Mrs. Peake had brought an action at law against the insurer in the State court after the defendants in the equity suit had been served with subpœnas issued therein, that it had caused the action at law to be removed to the Federal court and it was then pending in the same court in which the equity suit was pending; it alleged that the Benefit Building & Loan Association had never filed any disclaimer of interest or ownership of the policy but on the contrary it had served notice on the insurer prior to the bringing of the equity suit that it had become assignee of the policy and was then making claim that it was entitled to the proceeds thereof, either as equitable or legal assignee or owner thereof, that the Building & Loan Association had not brought an action on the policy and it was alleged to be the belief of plaintiff that it was the purpose of the Building & Loan Association to delay the assertion in court of its claim to the policy and await bringing any action thereon until after the two years' contestable period named in the policy should have expired, which would deprive the plaintiff in such a suit from setting up the defense of fraud and deceit of the insured in obtaining the policy. And it was prayed that the court enjoin Annie K. Peake from prosecuting her action at law and enjoin both defendants from bringing any other action or actions on the policy. On hearing the injunction prayed for was issued and the two defendants below joined in taking this appeal. They have not answered the bill and supplemental bill.
At the hearing on application for the injunction a written assignment by Annie K. Peake of all her interest in the policy to the Benefit Building & Loan Association, of date August 1, 1923, was produced, also there was produced a letter dated April 15, 1924, from the Building & Loan Association, addressed to the insurer's general agent, which enclosed the assignment. On receipt of this letter, and the assignment of Annie K. Peake enclosed therein, the insurer's agent sent to the Building & Loan Association a form of assignment of the policy used by the company, for the signatures and acknowledgment of both George L. Peake and Annie K. Peake thereto. George L. Peake came to his death three months thereafter. The general agent at Kansas City to whom the assignment was sent by the Building & Loan Association retained it until after the death of George L. Peake, when he sent it to the company's home office at Indianapolis. The Building & Loan Association retained the form of assignment used by the company sent to it by the general agent. It does not appear whether that form was ever signed by either George L. or Annie K. Peake, or both of them.
Appellants contend that (1) Mrs. Peake's claim is a legal demand and appellee could make its defense of fraud and deceit to that action as a legal defense, and thus had a remedy at law, Insurance Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; (2) the insurer's claimed equitable right and remedy are fully set up in the answer to Mrs. Peake's action, filed within the two years' time named in the incontestable clause of the policy, and those...
To continue reading
Request your trial
-
Beacon Theaters, Inc v. Westover
...81 L.Ed. 605. See also City of Morgantown, W. Va. v. Royal Ins. Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Peake v. Lincoln Nat. Life Ins. Co., 8 Cir., 15 F.2d 303. 6. 252 F.2d at page 874. In Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 192, 63 S.Ct. 163, 164, 87 L.Ed. 176, ......
-
New York Life Ins. Co. v. Feinberg
...v. Truesdale, 79 F.2d 481; Keystone Dairy Co. v. New York Life Ins. Co., 19 F.2d 68; New York Life v. Seymour, 45 F.2d 47; Peake v. New York Life Ins. Co., 15 F.2d 303; Jones v. Reliance Life, 11 F.2d 69; Brown Pacific Mut. Life Ins. Co., 62 F.2d 711; Jefferson Standard Life Ins. Co. v. Kee......
-
Vance v. Life & Casualty Ins. Co.
... ... 528; Cotton States Life Ins. Co ... v. Cunningham, 106 So. 766; Greenbaum v. Columbian ... Nat. Life Ins. Co., 62 F.2d 56; Aetna Life Ins. Co ... v. Kennedy, 31 F.2d 971; Head v. New York Life Ins ... Co., 43 F.2d 517; Peake v. Lincoln National Life ... Ins. Co., 15 F.2d 303; Sanders v. Jefferson Standard ... Life Ins ... ...
-
Equitable Life Ins. Co. v. Mann
... ... Tex.Civ.App., 75 S.W.2d 165; Driscoll v. Casstevens, ... Tex.Civ.App. 110 S.W.2d 958; Peake., 75 S.W.2d 165; Driscoll v. Casstevens, ... Tex.Civ.App. 110 S.W.2d 958; Peake v. Lincoln ... ...