Castle, Kiley and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge.
Action by named beneficiaries to recover on two $50,000 life insurance policies issued by defendant Equitable Life Assurance Society of the United States (Equitable).*fn1 The jury returned a verdict for Equitable.
On February 16, 1961, the insured Morton Jacobson, dealing with David Dorin, an agent for Equitable, made an incomplete application for $100,000 life insurance. Mr. Jacobson was medically examined, Part II of the application "Statements to Medical Examiner" was filled in, and Jacobson signed the Part II. He did not sign the Part I which Dorin filled out that day indicating, among other things, that a $100,000 policy was desired. Both parts are required for a complete application.
In March, 1961, subject to the requirement that an acceptable Part I be submitted to it, Equitable offered to issue a policy of insurance in the amount of $100,000 on the life of Jacobson, and sent the policy to Dorin for delivery. Jacobson was "rated." The company insisted upon a class C premium*fn2 because Jacobson had high blood pressure. The parties had previous dealings. Equitable had issued a policy in 1952, had refused to insure him in 1956 because of high blood pressure, and had offered a policy in 1959 at a class B premium. Jacobson had declined this policy.
When Dorin attempted to deliver the $100,000 policy in March, 1961, Jacobson refused because the premium was too high.
Dorin made several attempts to persuade the company's doctors to reduce the rating. Additional blood pressure readings were taken in May, and the company refused to change the rating.
On June 20, 1961, Dorin visited Jacobson and his son at the office of plaintiff American Cold Heading Corporation, Jacobson's company. It was arranged that instead of a single policy of $100,000, two $50,000 policies would be issued. On one of these Mrs. Jacobson, present plaintiff, would be owner and beneficiary, and on the other the corporation. A form entitled "Application, Part I," was made out for each policy and signed by Morton Jacobson and the owner of the policy.
Jacobson died three months later, September 21, 1961. Immediate cause of death was coronary occlusion, caused in turn by coronary arteriosclerosis and general arteriosclerosis.
Defendant Equitable alleged that certain material answers in Part II were not true, full and complete, in compliance with the terms of Part I, signed by Jacobson on June 20, that the answer to question 7a was false when made in February, and that Jacobson was not in good health on June 20, when he signed Part I and paid the first premium.
Jacobson's answer to question 7a indicated that he had never "been treated for or had any known indication of . . . chest pain. . . ." The doctor who attended Jacobson the night of his death, in September, 1961, had notes that Jacobson told him: "Has mentioned off and on for a year or more to his wife that there has been mild chest pain but when it is over he forgets it and does not consult a physician." Mrs. Jacobson, and their son, as well as the family physician, testified they had not been told of such pains, and Jacobson, aged 52, had led an active life. The evidence of falsity may be meager, but there was sufficient evidence before the jury to support a finding that the answer to question 7a was untrue in February, 1961.
Another answer indicated that Jacobson had never "been treated for or had any known indication of any disease or disorder of the . . . blood vessels. . . ." There is no evidence that this answer was untrue in February, 1961. Part I, however, executed June 20, 1961, contained an agreement that "The foregoing statements and all those contained in Part II hereof are true, full, and complete, and are made to induce the Society to issue the policy or policies applied for. . . ." Before June 20, 1961, Jacobson had consulted physicians and received a diagnosis which would render the answer untrue as of that date.
Part I also contained the agreement, "Any insurance applied for shall not take effect unless the first premium thereunder is paid during the good health of the Proposed Insured. . . ." The same diagnosis disclosed a deterioration of Jacobson's health which had not been known at the time of the earlier examinations or the signing of Part II, and which, as the evidence showed, was not a natural incident of the condition of elevated blood pressure, known to Equitable, and for which Jacobson had been rated.
In summarizing the evidence we shall, unless we indicate otherwise, state it in the light most ...