The opinion of the court was delivered by: Adair, District Judge.
Massachusetts Mutual Life Insurance Company, a corporation,
brought this action to rescind two policies of life insurance
issued by it on the life of David Reichenthal, late of Rock
Island, Illinois. The insured died within the two year
contestable period, and the suit was filed within that period.
Prior to instituting the action plaintiff delivered to defendant,
Alice Reichenthal, widow of decedent and sole beneficiary under
the policies, a letter of rescission as to each policy and
tendered to her a return of all premiums paid, with interest at
6% from the respective dates of payment. This tender, in the
amount of $2,165.76, was declined, and the amount thereof was
later paid by plaintiff to the Clerk under Fed.Rules Civ.Proc.
rule 67, 28 U.S.C.A. to abide the further order of the Court.
Alice Reichenthal, with her Answer to the Amended Complaint,
filed a Counterclaim for $30,000, the face amount of the
policies, and demanded trial by jury. To avoid confusion, we
shall continue to refer to Massachusetts Mutual Life Insurance
Company as "plaintiff", and Alice Reichenthal as "defendant",
although their positions are reversed as to the Counterclaim.
Under the direction of the Court the actions were tried
simultaneously, the rescission suit being heard by the Court and
the Counterclaim by a jury, with the plaintiff taking the burden
of going forward with the evidence. The jury trial resulted in a
verdict for defendant for $30,000, and judgment was entered in
At the close of all the evidence the plaintiff filed a motion
for judgment in the rescission suit and a motion for a directed
verdict in the jury action on the Counterclaim. The defendant
filed a motion for a directed verdict in both cases. Since the
rescission suit was tried by the court without a jury,
defendant's motion for a directed verdict in that suit is
misentitled and will be considered as a motion to dismiss and for
judgment in accordance with the prayer of the motion. Ruling on
all these motions was taken under advisement until after the
verdict of the jury.
Following the verdict of the jury and within the time allowed
by Rule 50(b), the plaintiff filed a motion to have the verdict
and the judgment entered thereon set aside and to have judgment
entered in accordance with its motion for a directed verdict,
and, in the alternative, for a new trial. Decision on this motion
was taken under advisement.
In the suit for rescission the Court is of the opinion that
plaintiff's motion for judgment should be granted, and it follows
that plaintiff's motion in the action on the Counterclaim must
also be granted.
In the action for rescission the Court finds the following
facts specially and states separately its conclusions of law
1. The plaintiff is a citizen of the State of Massachusetts;
and the defendant is a citizen of the State of Illinois, residing
in Rock Island, Illinois.
2. This case involves two policies of life insurance written by
the plaintiff on the life of David Reichenthal, viz.: A
policy for $20,000 dated October 2, 1950, written on the ten-year
term plan, and a policy for $10,000 dated October 11, 1951,
written on the ordinary life plan. This second policy was issued
in exchange for a term policy in the same amount dated October
11, 1950, under a provision of the earlier policy which permitted
it to be exchanged prior to the end of the seventh policy year
without medical examination.
3. In the case of each policy the first premium required by the
terms thereof was paid in the State of Illinois, and each of said
policies was delivered in Illinois.
4. The insured died August 7, 1952, and the cause of his death
was coronary thrombosis.
5. The insured's original application for insurance, dated
September 8, 1950, was in two parts. Part 2, the medical portion
of the application, contained certain questions which were
propounded to the applicant by plaintiff's medical examiner and
insured's answers thereto correctly recorded.
Among these questions and answers are the following:
Q. "4. During the past ten years have you had
"A. Advice, attendence, or
treatment by physicians,
any other persons? Ans. Yes.
"B. Treatment or observation
in a clinic, health
resort, hospital or
sanatorium? Ans. No.
"C. Periodic health
examinations? Ans. Yes.
blood or basal metabolism