Subar v. New York Life Ins. Co.

• Decision Date: 27 June 1932
• Docket Number: No. 5916.,5916.
• Citation: 60 F.2d 239
• Parties: SUBAR et al. v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

60 F.2d 239 (1932)

SUBAR et al. v. NEW YORK LIFE INS. CO.

No. 5916.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1932.

J. M. Dunham, of Grand Rapids, Mich. (Dunham, Cholette & Allaben, of Grand Rapids, Mich., on the brief), for appellants.

E. H. Johnson, of Grand Rapids, Mich. (Travis, Merrick, Johnson & McCobb, of Grand Rapids, Mich., on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

This is a suit to recover on two policies of insurance issued upon the life of Jacob Subar. The policies were issued upon an application signed by the insured May 6, 1929, were dated May 24, 1929, and were delivered and accepted June 3, 1929. The insured died August 31, 1929. The insurance company relied upon two defenses: First, that the insured consulted a physician between the date of his application and medical examination and the date the policies were delivered; and, second, that in his application he made false answers to questions concerning physicians whom he had consulted or who had examined or treated him within the preceding five years. At the close of the testimony on the trial below, the court, upon motion, directed a verdict for the defendant, and judgment was entered thereon. The only question that we find it necessary to consider is the sufficiency of the first defense.

The insured signed only one application, a copy of which was attached to each policy. Each policy stated: "The policy and the application therefor, copy of which is attached hereto, constitute the entire contract." The application provided: "That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the beneficiary and the first premium thereon paid in full, during the insured's lifetime, and then only if the insured has not consulted or been treated by any physician since his medical examination." The evidence shows without contradiction that on May 27, 1929, after the medical examination was made and the application was signed, but before the delivery of the policies, the insured consulted Dr. Schnoor, who took his medical history; that he complained of his heart, pains in his left shoulder and through his chest, of being weak and nervous, of shortness of breath, and of having considerable gas in his abdomen. The insurance company, neither through its agent nor otherwise, was advised of this consultation when the policies were delivered.

The provision in the application that the policy should not take effect upon delivery if the insured had consulted a physician since his medical examination became a part of the contract for insurance. First National Bank v. Hartford Fire Insurance Co., 95 U. S. 673, 675, 24 L. Ed. 563; New York Life Ins. Co. v. Wertheimer (D. C.) 272 F. 730; Columbian Nat. Life Ins. Co. v. Harrison, 12 F.(2d) 986 (6 C. C. A.); Hurt v. New York Life Ins. Co. (C. C. A.) 51 F.(2d) 936, 937. And this is true though the insured did not read the application or know its contents, for, as said in Lumber Underwriters v. Rife, 237 U. S. 605, 609, 610, 35 S. Ct. 717, 718, 59 L. Ed. 1140: "No rational theory of contract can be made that does not hold the assured to know the contents of the instrument to which he seeks to hold the other party. * * * What he assured cannot do is to take a policy without reading it, and then when he comes to sue at law upon the instrument, ask to have it enforced otherwise than according to its terms." Cf. New York Life Insurance Co. v. Fletcher, 117 U. S. 519, 530, 6 S. Ct. 837, 29 L. Ed. 934; Maryland Casualty Co. v. Eddy, 239 F. 477, 478 (6 C. C. A.); Prudential Casualty Co. v. Miller, 257 F. 418, 421 (6 C. C. A.); Norwich Union Indemnity Co. v. H. Kobacker & Sons Co., 31 F.(2d) 411, 412 (6 C. C. A.); Taylor v. American Liability Co., 48 F. (2d) 592 (6 C. C. A.).

Appellants seek to avoid the effect of this application provision upon the ground that each policy stated that it should take "effect as of the 6th day of May, 1929, which day is the anniversary of the policy." That provision, however, is to be read in the light of other provisions, one of which fixed as a condition upon which the policies should become effective — as of May 6, 1929, of course — that the insured had not consulted or been treated by a...