Weintrob v. New York Life Ins. Co.
| Decision Date | 14 July 1936 |
| Docket Number | No. 5824.,5824. |
| Parties | WEINTROB v. NEW YORK LIFE INS. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Walter Hanstein and Thompson & Hanstein, all of Atlantic City, N. J., for appellant.
Alfred E. Driscoll and Starr, Summerill & Lloyd, all of Camden, N. J., for appellee.
Before DAVIS and THOMPSON, Circuit Judges, and FAKE, District Judge.
This is an appeal from a judgment of the District Court for the District of New Jersey. The appellant brought an action at law to recover as beneficiary upon a policy insuring the life of her husband. The appellee defended on the ground that the assured had procured the policy through fraud, in that he answered certain questions falsely for the purpose of perpetrating a fraud upon the appellee with full knowledge that the answers were false and fraudulent. At the trial, the court directed a verdict for the appellee. On the appellant's main case, the proof and admissions established that the policy was issued May 11, 1928; that the appellant was the beneficiary; that the assured died January 31, 1929; that the premiums were paid; that the proper proofs of death were filed; and that the appellee refused to pay the amount of the policy. The appellee in its defense offered a copy of the application which contained the following questions and answers:
"8. Have you consulted a physician for or `Yes'
suffered from any ailment or disease of or
`No'
"A. The Brain or Nervous System? No
"B. The Heart, Blood Vessels or Lungs? No
"C. The Stomach or Intestines, Liver
Kidneys or Bladder? No
"D. The Skin, Middle Ear or Eyes? No
"9. Have you had Rheumatism, Gout or
Syphilis? No
"10. Have you consulted a physician for
any ailment or disease not included in your
above answers? No
"11. What physician or physicians, if any
not named above, have you consulted or been
examined or treated by within the past five
years? None"
The appellee offered evidence tending to show that the assured had, in fact, been treated by a physician for a heart condition. The physician's testimony was shaken on cross-examination and contradicted by the appellant's witnesses, although the appellant, by her own testimony in rebuttal, established the fact that the assured had been treated by a physician in the year 1926, which was within the five-year period covered by question 11 of the application. The appellee contends that this is sufficient to justify the direction of a verdict for it. The appellant relies upon the clause of the policy which provides:
In view of the provision that statements made by the assured are to be deemed representations and not warranties, it was important to determine whether the answer regarding attendance by physicians within five...
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