The opinion of the court was delivered by: KLOEB
A brief statement of the pertinent facts will suffice.
On August 29, 1945, Hyman Blitz, an officer of the defendant company, and Lyle C. Remdt, the Secretary-treasurer of the company, made application to the plaintiff insurance company for $ 40,000 of life insurance upon the life of Mr. Blitz, for the benefit of the defendant company.
In this application, the following question was asked of Mr. Blitz and answer given: 'Have you had at any time pain, pressure or discomfort in the chest, shortness of breath, palpitation, or any disease of the heart?' Answer: 'No'.
The application provided that it should form a basis to the contract applied for and should become a part of the contract when issued. It further provided that the insurance applied for should not become effective until the company had approved the application, the policy had been delivered, and the first premium paid, and that thereupon the insurance was to become effective from the date of issue stated in the policy, which was August 10, 1945.
The first premium did not accompany the application, but was paid by Mr. Remdt upon delivery of the policy.
In due course, Mr. Blitz underwent a physical examination at the hands of the company's physicians, and this application was forwarded to the company for further inquiry and scrutiny by its assistant secretary and its associate medical director.
On September 17, 1945, the application was approved, and the policy was issued and mailed to the soliciting agent of plaintiff company in Toledo, Ohio. On September 19, the agent took the policy to the office of the defendant company, and there inquired of Mr. Remdt concerning the whereabouts of Mr. Blitz. Mr. Remdt informed the agent that Mr. Blitz was still in New York, and made no other disclosures. Whereupon, the policy was delivered by the agent to Mr. Remdt, and Mr. Remdt delivered to the agent the company's check for $ 4,910 in payment of the first annual premium.
Immediately after Mr. Blitz had signed the application, he left for New York City on a buying trip, accompanied by certain officers of the defendant company. On September 12, 1945, he suffered a severe heart attack, known medically as angina pectoris, with coronary thrombosis, and a posterior wall myocardial infarction. He was taken from the hotel New Yorker to the Park East Hospital in New York City on the same day. On September 17, at the hospital, he suffered another heart attack similar to the one suffered on September 12th. Between September 12th, and September 19th, he lay in the hospital in a critical condition. Mr. Blitz died on March 31, 1946, in St. Vincent's Hospital, Toledo, Ohio, following a third similar heart attack.
Prior to September 17, 1945, the principal officers of the defendant company, including the Secretary-Treasurer, Lyle C. Remdt, were fully informed of the heart attack and of the critical condition of Mr. Blitz. Mr. Remdt knew all of the facts surrounding the collapse of Mr. Blitz, the nature of the attack, and the fact that he was confined in the hospital in New York City on September 19, at the time that he accepted the insurance policy and delivered therefor the check of the company in payment of the first annual premium.
Plaintiff company received its first information concerning the heart attack suffered by Mr. Blitz when the proof of death was filed on April 18, 1946.
Plaintiff notified defendant of cancellation of the policy, made tender of the premium paid, with interest, and upon refusal to accept the same filed its complaint herein. It seeks a judgment dismissing the counterclaim of the defendant, and declaring the policy null and void, and ordering its cancellation.
The facts of this case come squarely within the facts of Stipcich v. Metropolitan Life Insurance Company, 277 U.S. 311, 48 S. Ct. 512, 72 L. Ed. 895. It is unnecessary to quote from that opinion. A study of that case will satisfy the reader that the facts of the case cannot be differentiated from the instant case. The principles of law laid down in the Stipcich case are controlling in the instant case.
The case of New York Life Ins. Co. v. Gay, 36 F.2d 634, and 48 F.2d 595, certiorari denied 284 U.S. 624, 52 S. Ct. 10, 76 L. Ed. 532, decided by the Sixth Circuit Court of Appeals on December 13, 1929, and April 10, 1931, is controlling. The facts in the instant case are substantially the same as in the Gay case, ...