Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.
This action was originally brought by the plaintiffs in the Supreme Court of New Jersey to recover amounts alleged to be due them as beneficiaries on four policies of life insurance issued on September 14, 1938 by the defendant, Metropolitan Life Insurance Company, on the life of Richard Ettelson. The policies were delivered in New Jersey and took effect as contracts there. They are, therefore, governed by the law of that state. The policies comprised one for $5,000 naming the insured's son Adrian as beneficiary, one for $10,000 naming the insured's daughter Harriet as beneficiary, and two aggregating $25,000 naming the insured's daughter Doris as beneficiary. The insured reserved the right to change the beneficiaries. The insured died on July 11, 1939 of a coronary thrombosis.
The case was removed by the defendant to the United States District Court for the District of New Jersey and a jury trial was demanded by the pliantiffs. The defendant filed an answer setting up as a to the action that the policies were procured by fraud in the form of wilful misstatements of material facts by the insured. Specifically, the answer, as amended at the trial, alleged that the insured had answered "No" to question 11(c) in Part B of the application for the insurance, which question asked: "Have you ever had any ailment or disease of * * * The Stomach * * *?". The amended answer also alleged that the insured had answered "Yes. Cold, 1 attack, Jan. 1938.about 1 week. Not sick. rest at home. Cured. - Dr. Levy. Passaic." to question 12(g) which asked "Have you consulted a physician for any ailment or disease not included in your above answers?". The amended answer further alleged that the insured had answered "None" to question 13 which asked "What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years? If none, so state." and that he had signed a concluding certificate to the application reading "I hereby certify that: (1) I have read the answers to the questions in Part A and Part B hereof, before signing, (2) they have been correctly written, as given by me, (3) they are full, true and complete, and (4) there are no exceptions to any such answers other than as stated herein." The answer, as amended, set up as a defense that "Whereas, in fact the said insured had had a disease of the stomach, namely, a post-pyloric penetrating ulcer, in January and February of 1938, and whereas, in fact the said insured had, in addition, consulted physicians for an ailment or disease of the stomach, namely, Doctors Levy and Roemer, in January and February, 1938. Wherefore, these statements of the insured in answer to questions 11(c), 12(g), 13 and the concluding question beginning, 'I hereby certify,' * * * or some one or more of them, were false and fraudulent in that he failed to disclose such disease, consultation and treatment, of which he had full knowledge, by reason whereof the said policy is void."
The defendant also filed a counterclaim asserting that the policies were procured by fraud in that they were issued as a result of material statements made by the insured which were false in fact and which, therefore, entitled the defendant to the rescission of the policies, and that the defendant was without an adequate remedy at law. The counterclaim asked the court to restrain the further prosecution of the action at law and to decree the rescission of the policies. The counterclaim set out in paragraphs 9, 10 and 11 the answers to questions 11(c), 12(g) and 13, respectively, which we have quoted, and alleged that "At the time of, and prior to his said application for insurance, the said Richard Ettelson was in unsound health and was suffering from a number of serious ailments and diseases and was consulting physicians in connection therewith. He was consulting Dr. Herman Levy for an affection of his heart from which he suffered and from which he subsequently died. He was also consulting Dr. Levy for ulcers of the stomach. In connection with his medical treatments, x-ray examinations were made of his stomach which disclosed that he was suffering from ulcers of the stomach and an electrocardiogram was made of his heart which disclosed a serious heart condition.*fn1 In the said master application for the said policies of insurance, he failed to disclose any of these facts which were material to his application for insurance, and which, if known by the counterclaimant, would have resulted in a refusal by said counterclaimant to issue the said policies of insurance. The statements which he made in his said master application for said policies specifically referred to in paragraph 8 and 9 of this counterclaim were false in fact, and the statements which he made in his said application, specifically referred to in paragraphs 10 and 11 of this counterclaim were false in fact in that he failed to disclose the material facts in those two paragraphs referred to."
The plaintiffs moved to dismiss the counterclaim. The district court denied the motion and ordered that the issues raised by the counterclaim be heard before the trial of the plaintiffs' action. D.C. 42 F.Supp. 488. On appeal the latter order was held to be appealable as being in the nature of an injunction,*fn2 and was reversed by this court. 3 Cir., 137 F.2d 62. We held that the issue of fraud in the procurement of the policies which was raised by the counterclaim was provable in the district court as a defense to the plaintiffs' action upon the policies and was, therefore, an issue which must be submitted to the jury and not decided in limine by the court.
The question involved on the former appeal undoubtedly arose from the fact that in New Jersey, contrary to the situation in the federal judicial system, the rules of law and equity are administered in separate courts with the result that in actions at law purely equitable defenses are not available. Accordingly in actions upon policies of life insurance in the New Jersey courts of law only that kind of fraud is available as a defense which involves such wilful misstatement of material facts as would support a common law action of deceit.*fn3 Such fraud the New Jersey courts have called "legal fraud".The New Jersey Court of Chancery, however, recognizes that honest misrepresentations of material facts in the application for a policy may constitute a fraud upon the insurance company which will entitle the company to a decree rescinding the contract.*fn4 Such misrepresentations the Court describes as "equitable fraud". Accordingly in New Jersey it is necessary for an insurance company which seeks to rely upon fraud of this latter type to cast its defense into the form of a suit in the Court of Chancery for the rescission of the policy which is being sued upon at law.
It was doubtless in the light of the New Jersey procedure that the defendant's counterclaim in the present case was drawn. In accordance with that practice the counterclaim alleged material representations which were merely false in fact, whereas the amended answer alleged material representations which were false and fraudulent to the knowledge of the insured. Our holding on the former appeal was that any and all species of fraud may in the federal courts, contrary to the New Jersey practice, be submitted directly to the jury as a defense to the plaintiffs' recovery upon the insurance policies and that preliminary consideration of the counterclaim with a view of the entry of a decree cancelling the policies sued on was not in accord with federal practice. Our decision necessarily involved treating the counterclaim, under Federal Rules of Civil Procedure, rule 8(c), 28 U.S.C.A. following section 723c, as a supplemental answer to the plaintiffs' complaint and not as a pleading seeking affirmative relief.*fn5
Following the remand of the case it was brought on for trial before a jury in the district court. At the trial the insured's physician, Dr. Levy, testified that he had treated the insured between January 6 and February 14, 1938 but had only a record of the dates and not of any diagnosis or treatment.Another physician, Dr. Roemer, testified on behalf of the defendant that he had made an X-ray examination of the insured at the request of Dr. Levy on January 11 and 12, 1938 and had sent a report to Dr. Levy, making a diagnosis of a penetrating post-pyloric ulcer. A third physician, Dr. Cohen, testified that at the request of Dr. Levy he had made a blood count of the insured and had sent the report of it to Dr. Levy.Dr. Crohn, a stomach specialist, testified that Dr. Levy referred the insured to him on March 27, 1939. The trial judge refused to permit Dr. Crohn to testify concerning the history given to him at that time by the insured but he admitted in evidence the office records of Dr. Crohn under the Federal Shop Book Rule Act*fn6 and the doctor was permitted to read certain entries therein to the jury. Evidence was offered by plaintiffs to show general good health of the insured.
At the close of the testimony the trial judge submitted the case to the jury. He took the view that the mandate of this court upon the former appeal required him to submit to the jury separately the defense raised by the answer that the policies were void because procured as the result of wilful misrepresentations of material facts, which in accordance with the New Jersey practice he described as "legal fraud", and the defense raised by the counterclaim that the policies were void because they were procured as the result of innocent misrepresentations of material facts, which he described as "equitable fraud". Accordingly he directed the jury to bring in two verdicts - one bearing on legal fraud and the other bearing on equitable fraud. Following the trial judge's instructions the jury brought in two verdicts. One verdict was for the plaintiffs on legal fraud and the other was for the defendant on equitable fraud. Upon these verdicts the court entered a judgment dismissing the plaintiffs' complaint and directing that the policies of insurance sued on be delivered up for cancellation upon refund by the defendant of the premiums paid thereon with interest. From this judgment the plaintiffs took the present appeal.
The first question with which we are presented is whether the procedure adopted by the trial judge for the submission of the case to the jury for two verdicts was proper and in accord with the mandate of this court. We are satisfied that it was neither. Nothing in our former opinion required that two verdicts be taken which might prove to be, and in this case actually turned out to be, inconsistent with each other. Nor do we know of any basis for such practice. What we held on the previous appeal was that both the defense set up in the answer and the defense set up in the counterclaim were available to the defendant at the trial of the plaintiffs' action and that if either was established to the satisfaction of the jury the defendant would be entitled to a verdict. As a practical matter it would seem obvious that the defendant needed only to rely at the trial upon the defense of "equitable fraud" which was set up in the counterclaim and that it served no useful purpose for the question of wilfulness, which is the distinctive element involved in the New Jersey concept of "legal fraud", as contrasted with "equitable fraud", to be submitted to the jury. By the same token the action of the trial judge in procuring from the jury a separate verdict upon the issue of "legal fraud" was harmless error if his charge upon the question of "equitable fraud", as to which the jury found a verdict for the defendant, was correct, and there was evidence to support that verdict. We are thus brought to consider the instructions of the trial judge upon this subject. Preliminarily we must ascertain the present state of the law of New Jersey with respect to it.
As has already been said the New Jersey courts have held that a life insurance policy will be declared invalid upon the ground of fraud and ordered to be cancelled if it is shown that it has been issued by the insurance company in reliance upon misrepresentations of material facts even though innocently made. This is what, following the New Jersey practice, we have called "equitable fraud."*fn7 The rule, however, is not quite so sweeping as it has just been stated. While it applies in full force to objective questions in an application for insurance the answers to which must be within the applicant's knowledge, such, for example, as whether he has consulted a physician or has been treated at a hospital, it does not apply to the same extent in the case of subjective questions, such, for example, as whether the applicant has had a given disease or ailment. In the case of a question of this sort the New Jersey courts have held that the question is directed toward probing the knowledge of the applicant and determining the state of his mind and if the answer is a correct statement of the applicant's knowledge and belief it is not to be regarded as a misrepresentation.*fn8
When we turn to the answers which the defendant in its counterclaim asserts to be fraudulent we see that questions 12(g) and 13 which inquired as to consultations with and treatments by physicians, hospitals, etc., were purely objective in character, whereas question 11(c) which inquired as to whether the insured had even had any ailment or disease of the stomach was of the subjective type. It was accordingly proper for the trial judge to instruct the jury, as he in effect did, that if they found the insured's answer to either question 12(g) or 13 to have been relied on by the defendant and to be untrue in fact the defense of fraud was made out and the verdict should be for the defendant.*fn9 In the case of question 11(c), however, it was incumbent upon the trial judge to charge the jury that the defense of fraud would be made out only if they found the answer to the question untrue in the sense that it did not truly represent the insured's actual opinion and belief as to whether he had ever had any ailment or disease of the stomach. Since the trial judge did not so instruct the jury it necessarily follows that the judgment must be reversed and a new trial directed unless we find, as the defendant strongly asserts, that the uncontradicted evidence establishes that the insured made untrue answers to questions 12(g) and 13 which were relied upon by the defendant. For under these circumstances, says the defendant, a verdict should have been directed by the trial judge in its favor in any event.
We turn then to question 12(g) and the answer which the insured made to it. That question was "Have you consulted a physician for any ailment or disease not included in your above answers?" The insured's answer was "Yes. Cold. 1 attack. Jan. 1938. about 1 week. Not sick. rest at home. Cured. - Dr. Levy, Passaic." The uncontradicted evidence is that at the time of the cold referred to in his answer the insured was also treated by Dr. Levy for a stomach condition and that Dr. Levy sent the insured to Dr. Roemer for X-ray studies and to Dr. Cohen for a blood count. It will be noted, however, that question 12(g) is framed in the singular. It is held in New Jersey that a question framed in this form is fully satisfied by an answer ...