Zolintakis v. Equitable Life Assur. Soc.

• Decision Date: 08 March 1940
• Docket Number: No. 1934.,1934.
• Citation: 108 F.2d 902
• Parties: ZOLINTAKIS et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

108 F.2d 902 (1940)

ZOLINTAKIS et al. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 1934.

Circuit Court of Appeals, Tenth Circuit.

January 3, 1940.

Rehearing Denied March 8, 1940.

Parnell Black and H. L. Mulliner, both of Salt Lake City, Utah (Calvin W. Rawlings, H. E. Wallace, and Edgar C. Jensen, all of Salt Lake City, Utah, on the brief), for appellants.

J. D. Hurd, of Salt Lake City, Utah (E. D. Hurd, of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

The Equitable Life Assurance Society of New York, herein referred to as the company, issued an insurance policy to James Orfanos on his life, in the sum of $7,500. The policy provided for double indemnity in case of accidental death. Orfanos died while the policy was still in full force and effect. Claim was filed for accidental death, and proof of loss was submitted to the company. Liability was denied, and an action was instituted to recover on the policy. At the conclusion of all of the evidence, the trial court granted the motion of the company for a directed verdict in its favor, and judgment was entered thereon. An appeal was taken to this court and the case was reversed and remanded and a new trial granted. Zolintakis v. Equitable Life Assurance Society, 10 Cir., 97 F.2d 583. Thereafter, an amended answer was filed denying liability because, it was alleged, deceased had knowingly made material misrepresentations in the procurement of the policy of insurance. Other defenses also were set up, but they are not material here, as the case was submitted to the jury on special interrogatories under Rule 49(a) of the new federal rules, 28 U.S.C.A. following section 723c and the other defenses in the answer have been waived.

The material parts of the application are as follows: "Part I * * * My principal occupation is that of clerk in grocery store at Lingos Grocery #126 W. 2, Salt. * * * My other occupations are None. My residence is No. 126 West 2nd So. St., Salt Lake City, Utah. * * * All of the foregoing answers and all those contained in Part II hereof are true, and are offered to the Society as an inducement to issue the policy or policies for which application is hereby made."

Material portions of Part II of the application are as follows: "3. A. How long have you lived at your present address? (City or Town). A. One year. * * * 4. A. What is your occupation? (Position and kind of business.) A. Grocery Business. B. How long have you been so engaged? B. One year. * * * E. State occupations and home addresses during last five years differing from the present. Previous occupations and business addresses, Laramie, Wyoming. From year 1928 to year 1932. Previous home addresses (City, Street and No.) Candy Mfg. From year 1928 to year 1932. * * * (I agree that the foregoing answers shall be part of my application, which shall consist of Parts I and II taken together, and that the foregoing answers shall also become part of any policy contract that may be issued on the strength thereof.)"

The answer to Question 4. E. of Part II of the application was not involved in the first trial.

The testimony established substantially the following facts: George Cayias, a special agent of the company, knew James Orfanos. He had met him at Lingos Grocery Store and secured his application for this policy. He took the policy to the grocery store to deliver, but was told that Orfanos was no longer working there. A day or two later he found Orfanos on the street and was informed that he did not want the policy; that he had lost his job and could not pay for it. However, after some negotiations, Orfanos took the policy. The premiums on the policy were paid. By whom they were paid is not a material issue in this case.

Orfanos was not working at the grocery store when the policy was delivered. He had never lived at the grocery store; there were no living quarters there. While he worked at the grocery store he lived at the Boston Hotel. During the five years preceding the issuance of this policy he lived at various places. For a short time in 1933 he lived at a hotel in Price, Utah. He also lived in a shack near Price, Utah, picking greens for the market. During parts of 1932 and 1933 he lived with Nick Valdemis at Laramie, Wyoming. While working at Lingos Grocery Store he got his mail at 126 West 2nd So. St., and even while away, his mail came to this place and was forwarded to him.

His employment was as varied as his residence. He worked at Lingos Grocery Store at 126 West 2nd So. St. for about two weeks. During July, September and October of 1933 he worked in a restaurant at Price, Utah. He was also in jail in 1933 for a short time, convicted on a charge of bootlegging.

At different times, from 1928 to 1932, he worked in a candy kitchen in Laramie, Wyoming, at a cigar counter and in a pool-hall. There was some testimony that at times his business was that of gambling and bootlegging.

There was testimony that the Boston Hotel was a place where bootlegging was permitted, criminals gathered, and prostitutes plied their trade. The company made an independent investigation of Orfanos when the application was taken, the investigator reporting that applicant resided at 126 West 2nd South Street, Salt Lake City; that he was employed as a grocery clerk; and that he had lived in Laramie, Wyoming, where he was engaged as a candy manufacturer. At the conclusion of the evidence, the court submitted the case to the jury on special interrogatories. The first eleven interrogatories were submitted by plaintiff, and together with the answers, were as follows:

"1. Was the insured's answer to the question in part 1 of the application: `My principal occupation is that of' Answer: `Clerk in grocery store at Lingos Grocery, 126 W 2 So St.' knowingly false when made? Answer: No.

"2. If your answer to the foregoing is yes, then: (a) was the insured's answer to the foregoing question, if not strictly true, made by the insured knowingly and made intentionally for the purpose of inducing the Insurance Company and thus procuring the policy from it by fraud? Answer: No. (b) Was this answer by the insured to this question relied upon by the defendant Insurance Company so that the Insurance Company was thereby deceived and induced to issue this policy? Answer: Not wholly, but in part. (c) Was this answer contained in the application, namely: `clerk in grocery store at Lingos Grocery, 126 W. 2 So. St.' material as affecting the risk insured against in the policy contract? Answer: Yes.

"3. Was the insured's answer to the question in part 1 of the application: `My residence is No.' answer: `126 W 2 So St., Salt Lake City, Utah,' knowingly and intentionally untrue when made? Answer: No.

"4. If you find that the foregoing answer was not strictly true when made then (a) Was the insured's foregoing answer to the foregoing question made by the insured knowingly and made intentionally for the purpose of inducing the Insurance Company and thus procuring the policy from it by fraud? Answer: No. (b) Was this answer by the insured to this question relied upon by defendant Insurance Company so that the Insurance Company was thereby deceived and induced to issue this policy? Answer: Not wholly, but in part. (c) Was this answer contained in the application, namely: `126 W 2 So St., Salt Lake City, Utah,' material as affecting the risk insured against in the policy contract? Answer: Yes.

"5. Was the insured's answer to question 3-2 in part 2 of the application: `How long have you lived at your present address? (City or town)', answer: `One year,' (a) intended to be an answer as to a specific street address? Answer: Yes. or (b) Was it intended as being an answer as to the city or town only? Answer: No.

"6. If you find that the foregoing answer to the foregoing question was not strictly true as to an entire one year, then (a) Was said answer made by the insured knowingly and made intentionally for the purpose of inducing the Insurance Company and thus procuring the policy from it by fraud? Answer: No. (b) Was said answer by the insured to this question relied upon by the defendant Insurance Company so that the Insurance Company was thereby deceived and induced to issue this policy? Answer: Not wholly, but in part. (c) Was said answer material as affecting the risk insured against in the policy contract? Answer: Yes.

"7. Was the insured's answer to question 4-a of part 2 of the application: `what is your occupation? (Position and kind of business)' Answer: `grocery business' intended (a) as an answer with relation to his position? Answer: No. Or (b) Was it intended as an answer to the question as to `kind of business' in which he was employed? A. Answer: Yes.

"8. If your answer to the foregoing is that the insured's answer was intended as an answer to the question as to kind of business, then was his answer to the next question, 4-b, part 2, `How long have you been so engaged?' Answer: `One year,' intended to be an answer as to the time he had been engaged in such line of business? Answer: yes.

"9. If you find that the foregoing answers to questions 4-a and 4-b, part 2, of the application, were not strictly true when made, then: (a) Were said answers made by the insured knowingly and made intentionally for the purpose of inducing the Insurance Company and thus procuring the policy from it by fraud? Answer: No. (b) Were said answers made by the insured to these questions relied upon by the defendant Insurance Company so that the Insurance Company was thereby deceived and induced to issue this policy? Answer: Not wholly, but in part. (c) Were these said answers material as affecting the risk insured against in the policy contract? Answer: Yes.

"10. Was the insured's answer to question 4-e of part 2 of the application: `State occupations and home addresses during the last five years different from the present'...