that plaintiff, within one year from the date of the death of the
insured, filed an application for waiver of premiums due on the
aforesaid contract of insurance together with the required proof
of disability of the said Thomas Joseph Sly. It is plaintiff's
contention that insured's unawareness of his disability was a
circumstance beyond insured's control within the meaning of the
Act, such as would excuse him from filing the claim for waiver of
premiums within one year from the due date of the unpaid premium
as required by the Act and that by reason of said application for
waiver filed by plaintiff the contract of insurance in question
was in full force and effect at the time of the death of said
Thomas Joseph Sly on the 24th of May, 1950.
The case came on for trial before a jury and at the close of
all the evidence, for reasons which will hereinafter appear, the
defendant's motion for a directed verdict was sustained by the
court and judgment was entered in favor of the defendant.
The case is presently before the court on plaintiff's motion to
set aside verdict and judgment for defendant and to enter
judgment in favor of plaintiff in accordance with plaintiff's
motion for a directed verdict, and an alternative motion for a
new trial. Plaintiff contends that the court erred in failing to
submit the case to the jury upon the fact issue as to whether the
failure of the insured, Thomas Joseph Sly, to file application
for waiver of premiums was due to circumstances beyond his
control, namely, ignorance of the fact that he was totally and
At the time the case proceeded to trial two issues were in
dispute: (1) Did Thomas Joseph Sly know, during the year
immediately following October 12, 1948, that he was totally and
permanently disabled; and (2) if Thomas Joseph Sly did not know
that he was totally and permanently disabled during the said
time, did such lack of knowledge constitute a circumstance beyond
his control within the meaning of the statute? During the course
of the trial, however, another issue arose out of the facts shown
by the testimony of plaintiff and his witnesses which cannot be
In the presentation of the plaintiff's case Dr. Francis Bihss,
a radiologist and the treating physician of the deceased,
testified that before October 12, 1948 he had diagnosed the
deceased's condition as spleenic leukemia; that he advised the
plaintiff of insured's condition, that the disease was incurable
and that he was totally and permanently disabled; that he agreed
with plaintiff beneficiary to keep such information from the
insured; that in his opinion it was better from a medical
standpoint for the insured to be kept in ignorance of his true
condition. The plaintiff, Thomas E. Sly, was also sworn as a
witness, and testified that he was the father of the deceased,
Thomas Joseph Sly; that he knew that he was named as a
beneficiary in the policy; that he was engaged in business as an
insurance broker and that the deceased worked with him a portion
of the time; that during the period of one year, following
October 12, 1948, he knew that his son was suffering from an
incurable disease known as spleenic leukemia and was totally and
permanently disabled; that during this time he and Dr. Francis
Bihss agreed, for the good of the insured, as he believed, to
keep this information from the insured and that he did keep such
information from him.
From the testimony referred to above it seems conclusive that
if the deceased was, in fact, unaware of his incurable condition
and that he was totally and permanently disabled (there is some
evidence that he knew and realized his condition) it was because
of the deliberate and conscious efforts of the plaintiff to keep
him ignorant of those facts. The lack of knowledge, which is here
alleged to be a circumstance beyond the control of the deceased
such as would excuse his failure to file an application for a
waiver of premiums, was admittedly
a result of the conscious and deliberate efforts of the plaintiff
who was named as beneficiary in the policy. No question of fact
for the jury was presented by the evidence on this point. Whether
under said circumstances the plaintiff should be permitted to
recover became a question of law for the court. But for that
question, under the present state of the authorities, the case
would have been permitted to go to the jury, under instructions,
despite the earnest contention of the government that lack of
knowledge of insured that he was totally and permanently disabled
did not constitute a circumstance beyond his control so as to
excuse failure to apply for waiver of premiums. But with the
added fact that such lack of knowledge on the part of the assured
was deliberately brought about by the beneficiary it seemed to
the court that the plaintiff should not be permitted to succeed
as a matter of law.
Should the beneficiary in the policy here under consideration
be permitted to take advantage of his own deliberate acts and
omissions which prevented the insured from complying with the
requirements of the policy? The law, on principle, seems not to
favor a recovery under such circumstances. In the case of R.H.
Stearns Co. of Boston, Mass. v. United States, 291 U.S. 54, at
page 61, 54 S.Ct. 325, at page 328, 78 L.Ed. 647, the Supreme
Court of the United States, speaking through Mr. Justice Cardozo,
"The applicable principle is fundamental and
unquestioned. `He who prevents a thing from being
done may not avail himself of the non-performance
which he has himself occasioned, for the law says to
him, in effect: "This is your own act, and therefore
you are not damnified."' Dolan v. Rodgers, 149 N.Y.
489, 491, 44 N.E. 167, and Imperator Realty Co. v.
Tull, 228 N.Y. 447, 457, 127 N.E. 263; quoting West
v. Blake-way, 2 Mann. & G. 729, 751 [133 Eng.
Reprint, 940, 949]. Sometimes the resulting
disability has been characterized as an estoppel,
sometimes as a waiver. The label counts for little.
Enough for present purposes that the disability has
its roots in a principle more nearly ultimate than
either waiver or estoppel, the principle that no one
shall be permitted to found any claim upon his own
inequity or take advantage of his own wrong.
Imperator Realty Co. v. Tull [228 N.Y. 447,
127 N.E. 263], supra. A suit may not be built on an omission
induced by him who sues. Swain v. Sea-mens, 9 Wall.
254, 274, 19 L.Ed. 554 ; United States v. Peck,
102 U.S. 64, 26 L.Ed. 46; Thomson v. Poor, 147 N.Y.
402, 42 N.E. 13; New Zealand Shipping Co. v. Societe
des Ateliers (1919) A.C. 1, 6 [ — H.L.]; 2
Williston, Contr. §§ 689, 692."
Plaintiff has devoted much argument to the end that defendant
may not rely upon the defense of estoppel for the reason that all
of the elements required for an estoppel are not present. Without
stopping to classify the obstacle to plaintiff's right to recover
it would seem, as Justice Cardozo said in R.H. Stearns Co. of
Boston, Mass. v. United States, supra, "the label counts for
little." The plaintiff put himself in position that the law
should not and does not permit him to succeed.
The undisputed evidence shows that plaintiff, with knowledge
that the insured was disabled, kept the knowledge from the
insured so he could not comply with the requirement that he apply
for waiver of premiums but plaintiff, having such knowledge,
failed to do anything to avoid the consequences of his own act.
In effect, he, the beneficiary, stepped into the shoes of the
insured and failed to protect the policy in any way. Thereby, he
forfeited his rights as beneficiary.
The plaintiff further contends that the defendant failed to
plead the action of Thomas E. Sly in withholding information from
the deceased as a defense
and thereby waived the right to raise the point.
Under Rule 8(c) of the Federal Rules of Civil Procedure, Title
28 U.S.C.A., in a responsive pleading a party shall plead
affirmatively any matter which constitutes an avoidance or an
affirmative defense. The purpose of this rule is to prevent
surprise, Carr v. National Discount Corporation, 6 Cir.,
172 F.2d 899; Barron and Holtzoff, Federal Practice and Procedure, Vol. 1,
sec. 279. The primary purpose of the rules is to permit the
accomplishment of substantial justice by simplifying the
procedure. The general policy in the interpretation of these
rules is to disregard the technicalities and to determine the
rights of litigants on the merits and to that end the rules are
liberally construed. Mitchell v. White Consolidated, 7 Cir.,
177 F.2d 500; Holley Coal Co. v. Globe Indemnity Co., 4 Cir.,
186 F.2d 291.
The evidence of the fact that plaintiff was responsible for the
insured's lack of knowledge of his permanent and total disability
was produced by the plaintiff in his own testimony and in the
testimony of his witnesses. Under these circumstances plaintiff
cannot maintain that he was surprised as to the facts presented.
Dixie-Vortex Co. v. Paper Container Mfg. Co., 7 Cir.,
130 F.2d 569, at pages 576, 577. To deny to the defendant the right to
raise the question on the motion for a directed verdict in this
case would defeat the avowed purpose for which the Rules of Civil
Procedure were promulgated. Furthermore, were it essential under
the rules, any discrepancy between the pleadings and the evidence
presented by plaintiff at the trial may be rectified by a motion
under Rule 15(c) to amend the pleadings to conform to the
The motion of the plaintiff to set aside verdict and judgment
for defendant and to enter judgment in favor of plaintiff in
accordance with plaintiff's motion for a directed verdict, and
alternative motion for a new trial, will be denied.
© 1992-2003 VersusLaw Inc.