Silverman v. New York Life Ins. Co.

• Decision Date: 29 June 1935
• Docket Number: No. 6349.,6349.
• Citation: 65 App. DC 29,79 F.2d 154
• Parties: SILVERMAN v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 29, 79 F.2d 154 (1935)

SILVERMAN v. NEW YORK LIFE INS. CO.

No. 6349.

United States Court of Appeals for the District of Columbia.

Argued May 15, 1935.

Decided June 29, 1935.

Rehearing Denied July 22, 1935.

Morris Simon, Lawrence Koenigsberger, Eugene Young, William H. Collins, and Louis E. Spiegler, all of Washington, D. C., for appellant.

Frederic D. McKenney, John S. Flannery, G. Bowdoin Craighill, and John E. Larson, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from a judgment for the defendant in an action brought in the lower court by appellant as plaintiff to recover on a policy of life insurance.

The plaintiff, Marim Silverman, in her declaration alleged that the defendant, the New York Life Insurance Company, on April 21, 1932, issued a policy of insurance for $5,000 upon the life of her husband, Isaac Silverman, wherein plaintiff was named as beneficiary, the payment of $192.30 to the company as the first premium thereon being acknowledged in the policy; that on May 3, 1932, while the policy of insurance was in full force and effect, the insured departed this life; that plaintiff as beneficiary duly gave proof of his death to the defendant and demanded payment of the policy; but defendant refused to pay the same or any part thereof and still refuses so to do. Plaintiff therefore claimed judgment.

By its plea the defendant admitted that on April 21, 1932, it executed a policy of insurance upon the life of Isaac Silverman in the sum of $5,000, wherein the plaintiff was named as beneficiary; that Silverman died on May 3, 1932, and that proof of his death was duly given to defendant; that plaintiff demanded payment under the policy and defendant refused to make such payment; but defendant denied that the policy was in force and effect at the time of the death of Silverman and denied that defendant became indebted to the plaintiff in any sum thereunder.

Defendant alleged that on April 19, 1932, Silverman filed a written application with defendant for insurance on his life, and the application which was signed by him stipulated among other things as follows:

"It is mutually agreed as follows: 1. That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since his medical examination. * * * 3. That only the president, a vice president, a second vice president, a secretary, or the treasurer of the company can make, modify, or discharge contracts, or waive any of the company's rights or requirements; that notice to or knowledge of the soliciting agent or the medical examiner is not notice to or knowledge of the company, and that neither one of them is authorized to accept risks or to pass upon insurability. * * *"

That insured on the same day was examined by defendant's medical examiner; that on April 21, 1932, defendant at its New York office issued the insurance policy involved in this case, but the policy was not delivered to Silverman nor was the first premium paid thereon at a time when the applicant had not consulted or been treated by any physician since the medical examination by defendant's examiner, and therefore the policy never became a valid obligation of the defendant.

Plaintiff, by replication, alleged that the policy was delivered to the insured on April 27, 1932, and that insured was then in good health; she denied that the insured had consulted and been treated by any physician between the time of his medical examination on April 19, 1932, and the time of the delivery of the policy of insurance and the payment of the first premium thereon; she denied that the insured in any application for the policy made the agreements alleged in the plea, and denied that there was ever attached to the policy an application for such policy in which such agreements were set forth.

At the trial of the case the plaintiff introduced in evidence the policy of life insurance in question containing among others, the following provisions:

"New York Life Insurance Company, a mutual company agrees to pay Marim, wife of the insured beneficiary $5,000 upon receipt of due proof of the death of Isaac Silverman, the insured.

"This contract is made in consideration of the application therefor and of the payment in advance of the sum of $192.30, the receipt of which is hereby acknowledged, constituting the first premium and maintaining this policy for the period terminating on the 31st day of March 1933, and of a like sum on said date and every 12 calendar months thereafter during the life of the insured.

"This policy takes effect as of the 31st day of March 1932, which day is the anniversary of the policy.

"The contract. a€” The policy and the application therefor, copy of which is attached hereto, constitute the entire contract. All statements made by the insured shall, in 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 it is contained in the written application and a copy of the application is indorsed upon or attached to this policy when issued. No agent is authorized to make or modify this contract or to extend the time for the payment of premium, or to waive any lapse or forfeiture or any of the company's rights or requirements. * * *"

There was physically attached to the policy at the time when it was so offered and received in evidence a photostat of the application dated April 19, whereby Silverman applied for the policy, and which was signed by Silverman and Taske, the soliciting agent for the defendant. The copy of the application was admitted in evidence over the objection and exception of plaintiff. The application contained among other things the following paragraphs:

"It is mutually agreed as follows: 1. That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by a physician since his medical examination. * * * 3. That only the president, a vice-president, a second vice-president, a secretary or the treasurer of the company can make, modify or discharge contracts, or waive any of the company's rights or requirements; that notice to or knowledge of the soliciting agent or the medical examiner is not notice to or knowledge of the company, and that neither one of them is authorized to accept risks or to pass upon insurability. 4. That by receiving and accepting said policy, any additions or amendments hereto which the company may make and refer to in question 10 above entitled `Additions or Amendments' are hereby ratified.

"2. Sum to be insured, $3,000. Premiums how payable, Annually. Age nearest birthday, 42.

"10. Additions or amendments (for home office use only) (2) Additional policy $5,000 written on the ordinary life plan."

The plaintiff also offered evidence tending to prove that the policy was delivered to the insured by Taske, April 27, 1932, at his place of business; that at the time of the delivery Taske had an alternative policy issued by the company upon the life of decedent for $3,000 as well as the policy for $5,000; that Taske asked the insured which one he desired to accept, and the insured answered the $5,000 policy; that thereupon the policy for $5,000 was delivered to the insured and remained in his possession until his death.

In order to sustain its defense the defendant introduced without contradiction evidence of the following facts, to wit: That the policy in question was received by Taske from the company on April 25, and was delivered by him to Silverman at his store on April 27; that no payment of the first premium was made to him at that time; that on April 28 Silverman went as a patient to Providence Hospital and on the next day underwent an abdominal operation; that on May 2 while he remained in the hospital, Harry Cohen, Silverman's son-in-law, undertook to pay the first premium upon the policy by delivering his check to Taske for the sum of $192.30; that at this time Taske knew that Silverman was in the hospital following the abdominal operation, nevertheless he received Cohen's check and immediately deposited it in his bank and remitted his own check to the company for the sum of $86.53, which was the amount of the first premium less Taske's commission; that Silverman died on the following day, to wit, May 3, that the check of Cohen which Taske had received...