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MASSACHUSETTS MUTUAL LIFE INS. CO. v. REICHENTHAL

January 4, 1956

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, PLAINTIFF,
v.
ALICE REICHENTHAL, DEFENDANT.



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 that amount.

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 thereon.

Findings of Fact

The Court finds that:

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.

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,
        practitioners, or
        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.
    "D. X-ray,
        electrocardiographic,
        blood or basal metabolism
        ...

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