Opinion
No. 5164.
March 21, 1934.
Appeal from the District Court of the United States for the Western District of Pennsylvania; F.P. Schoonmaker, Judge.
Suit by the New York Life Insurance Company against Dora A. Goldman. Decree for plaintiff, and defendant appeals.
Affirmed.
Louis Rosenberg, of Pittsburgh, Pa., for appellant.
Louis H. Cooke, of New York City, and William H. Eckert and Smith, Buchanan, Scott Gordon, all of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an appeal from a decree canceling a policy of life insurance upon the refund of premiums on the life of Jacob G. Goldman, deceased, on the ground of false and fraudulent answers made by him to questions 8c, 10, and 11 in part II of his application for insurance. These questions and answers are as follows:
"8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of
"C. The Stomach or Intestines, Liver, Kidneys or Bladder?
"No.
"10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers?
"No.
"11. What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by within the past five years?
"None."
He further said in his application: "On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."
The application was signed or dated January 31, 1931.
The testimony is undisputed that Mr. Goldman consulted his physician, Dr. B.Z. Cashman, a member of the faculty of the Medical School of the University of Pittsburgh, in March of 1926. He was then wearing a pad for a prolapsed kidney. He had also consulted Dr. K.I. Sanes for the same thing about fourteen years before, and he advised him to wear the pad, which he had apparently worn ever since.
He went back to see Dr. Cashman in October of 1930 wearing a pad for the same trouble and complaining of a slight dragging in his right side and wanted to know if he should continue to wear the pad. In addition, his stomach, intestines, and liver were displaced downward.
In his answer to question No. 10, he said that he had never consulted a physician for any ailment or disease not included in his previous answers, and in his answer to question No. 11 he said that he had not consulted, or been treated by, any physician within the past five years.
Goldman died on October 22, 1932, from an operation for cancer of the large intestine. The hospital record shows that he had a "tumor" on the kidney and also on the intestine.
It cannot be that Mr. Goldman did not remember his visits to Dr. Cashman when he said he had never consulted a physician for, or suffered from, any ailment or disease of the kidney, for at that very moment he was wearing a pad for an ailment of the kidney pursuant to advice of Dr. Cashman, whom he had consulted in 1926 and 1930, and his failure to disclose these consultations was a fraud on the insurance company as found by the trial judge. Raives v. Raives et al. (C.C.A.) 54 F.2d 267; Ætna Life Insurance Co. v. Moore, Administrator, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Mutual Life Insurance Company v. Hilton-Green, Executors, 241 U.S. 613, 36 S. Ct. 676, 60 L. Ed. 1202.
The decree is affirmed.