Filed: Apr. 13, 1972
Latest Update: Feb. 22, 2020
Summary: 457 F.2d 972 DISPOSABLE SERVICES, INC., Plaintiff-Appellee, v. ITT LIFE INSURANCE COMPANY OF NEW YORK, Defendant-Appellant. No. 71-2258. United States Court of Appeals, Fifth Circuit. April 13, 1972. Robert E. Venney, Gunn & Venney, Miami, Fla., for defendant-appellant. Herbert L. Heiken, Martin Levinson, Miami, Fla., for plaintiff-appellee. Before BELL, AINSWORTH and GODBOLD, Circuit Judges. PER CURIAM: 1 It is ordered that the petition for rehearing filed in the above entitled and numbered cau
Summary: 457 F.2d 972 DISPOSABLE SERVICES, INC., Plaintiff-Appellee, v. ITT LIFE INSURANCE COMPANY OF NEW YORK, Defendant-Appellant. No. 71-2258. United States Court of Appeals, Fifth Circuit. April 13, 1972. Robert E. Venney, Gunn & Venney, Miami, Fla., for defendant-appellant. Herbert L. Heiken, Martin Levinson, Miami, Fla., for plaintiff-appellee. Before BELL, AINSWORTH and GODBOLD, Circuit Judges. PER CURIAM: 1 It is ordered that the petition for rehearing filed in the above entitled and numbered caus..
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457 F.2d 972
DISPOSABLE SERVICES, INC., Plaintiff-Appellee,
v.
ITT LIFE INSURANCE COMPANY OF NEW YORK, Defendant-Appellant.
No. 71-2258.
United States Court of Appeals,
Fifth Circuit.
April 13, 1972.
Robert E. Venney, Gunn & Venney, Miami, Fla., for defendant-appellant.
Herbert L. Heiken, Martin Levinson, Miami, Fla., for plaintiff-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
1
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.
2
GODBOLD, Circuit Judge (dissenting to order denying petition for rehearing):
3
After considering the petition for rehearing and giving further study to the record, I think the petition should be granted.
4
The trial judge decided the case for plaintiff on a question of law. We held that he erred and then decided for defendant on another issue of law. I think the record reveals that, after all, what we have is a question of fact for jury determination.
5
The ultimate concern is whether Britt, the insured, had such knowledge of an impairment to his health as put on him a duty to report it to the insurance company. This brings us face to face with the question of what Britt learned of his condition from Dr. Bryant on February 3, a date which, under any version of the facts, was before the policy became effective. Dr. Bryant testified that at no time did he diagnose Britt as having a kidney stone, that he examined Britt and found him essentially normal except for tenderness over the left kidney, that he thought there was something wrong with the kidney, either an obstruction or infection, and recommended to Britt that he check in to the hospital and find out the cause, and that at some point (the time of which is not fixed) he indicated a "possible" kidney stone.
6
An entry on the hospital admission record, made by a resident physician who did not testify, said this:
7
Pt. states that about nine days ago he started c>5< pain in the back (on the left). It was a sore [sic] in the beginning and it increased until being very strong. With heat pad he improved. Three days ago he saw his doctor and he thought that probably a kidney stone was the cause and he must be admitted.
8
The entry is ambiguous-whether the second "he" is the doctor or Britt is unclear. In any event, ambiguous or not, taking both the hospital record and Dr. Bryant's testimony, it is plain that our original opinion was wrong in stating that it was "undisputed" that Dr. Bryant told Britt that he "was suffering from some type of kidney ailment, probably a kidney stone." (Emphasis added.)
9
It is for a jury to consider these postevent efforts to determine just how much Britt really knew on February 3, and, under appropriate instructions, to decide whether that knowledge was sufficient to require him to tell the insurance company about it.
