holding that where statements by the insured are warranted to be true, “the insurer may avoid the policy by showing the falsity of statements material to the risk, irrespective of the insured’s knowledge of their falsity or of his good faith in making them”
How later courts described this case
- holding that where statements by the insured are warranted to be true, “the insurer may avoid the policy by showing the falsity of statements material to the risk, irrespective of the insured’s knowledge of their falsity or of his good faith in making them”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mb. Justice Eagen:
I emphatically dissent!
I agree with the legal correctness of Slochower v. Board of Higher Education of New York City, 350 U. S. 549 (1956), but the facts herein are not comparable. If a school board, because of a provision in a city charter, were compelled to summarily dismiss any employee, who refused to testify or answer before a congressional committee, and was consequently thereby denied the right to exercise its sound discretion with respect to the employee’s continued employment even though it was determined he or she was completely competent, of course that would be wrong and legally unjustified. That was the Slochower case, but it is not the case of Goldie Watson.
An examination of the record (the notice of suspension; the statement of charges; the testimony before the members of the sub-committee of the House UnAmerican Activities Committee; and, the testimony before the Board of Education) clearly discloses that *86 Mrs. Watson was not dismissed because of her failure to answer questions bearing on her loyalty, but rather was it because of what she did say and the manner in which she said it that justifiably led to the conclusion by the Superintendent of Schools that her demeanor bordered on insolence and disclosed incompetency in unmistakable terms. This is not a ease of a school teacher suffering dismissal or being declared incompetent merely because she saw fit to exercise her constitutional privileges of refusing to answer. No, this is a situation wherein her public employer, after a full hearing, determined that she was unfit to teach in the community because she clearly evidenced a settled contempt, a blatant disrespect and an arrogant disregard for a duly constituted congressional committee and the important functions it sought to perform.
Let us see how these unfortunate traits of attitude are manifested by the minutes of the sub-committee. She was asked ten questions. She gave responsive answers to three: her name, address, and a brief résumé of her schooling and educational background. When asked if she had ever been a member of the Communist Party, she replied: “Mr. Kunzig, I ask your first questions to be completely identified before this committee. I will not answer any other question I am asked about membership in organizations, associations, societies, people I have met with, or anything else.” When advised by the sub-committee of her rights under the Fifth Amendment, she declined to invoke it. In reply to the same question asked again, she said: “I said that I would not answer the question, and that it is a violation of my Constitutional rights for you to bring me here and attempt to compel me to answer questions about my associations, memberships, conferences, or speeches.” (Note: “conferences” and *87 “speeches,” both volunteered). Not having availed herself of the privilege against self-incrimination, she was directed to answer and she countered: “I refuse to answer on the basis of my first statement.” Next question — “Mr. Kunzig: Did you ever attend a Communist school or a school for instruction of Communist teachers in New York State? Mrs. Watson: Mr. Kun zig, I have intimated that I am not going to answer your questions. . . .” When directed to answer, she said: “I will not answer” ... “I refuse to answer.” 1 These questions and answers are, in the minutes, interspersed with repeated references to the fact that the witness was, during it all, constantly consulting with ‘her counsel. Finally, she “took the First.” “Mr. Kunzig: Have you ever attended any Communist instruction school at any place? Mrs. Watson: Mr. Kunzig, I refuse to answer, specifically on the basis of •my rights as guaranteed by the First Amendment to the Constitution. ... I refuse to answer on the basis of the First Amendment.” Mr. Kunzig then asked that “the record show that in voice and tone the witness has emphasized the use of the words ‘First Amendment.’ ”
Later in the proceedings she is thusly advised by a committee member: “Mr. Scherer: Of course, I think it is fair to tell the witness — evidently, she already has been told by her counsel — that the manner in which you answered the questions this morning clearly indicates that you are in contempt of the Congress.” After consulting with counsel, she replied: “I have been advised by my counsel of the risks and the dangers that I run by taking this position. I still take the risks and the dangers because this position is very sacred to me.” Following which, when asked if she had taken the loyalty oath, she said: “I will not answer that ques *88 tion.” (She later stated that it was a matter of public record that she had taken it.)
That’s Goldie Watson as she was before the subcommittee in Washington. But she returns to the scene in person in answer to the charges of her Superintendent at the board hearing. Now she explains, at length, the reasons that prompted her so to act. Now especially does she mirror traits of attitude toward the sub-committee that lead undeviatingly to the conclusion that she is, as charged, unfit to teach in the Commonwealth’s public school system. This is she: “Since the inception of the Committee in 1938 under the Chairmanship of Martin Dies, I had been of the opinion that this wasn’t a legislative committee concerned with investigating and then presenting laws; rather that it was an inquisitorial committee and that it was violating the First Amendment to the Constitution.” Referring to visits made to her before the hearing by committee investigators and specifically to requests by the latter to identify other people as communists, she said: “I told them that I have had a rule for twenty-two and a half years, that when a pupil walks to my desk he says I; that nothing would make me cooperate with the Committee. I gave them a breakdown of what I thought about the Committee and its violation of all Americans’ rights and its dangers particularly to Negro Americans, and that under no circumstances would I cooperate with them.” She then says that she “tried to convince” Mr. Fuoss (a committee worker) “of what real Americanism was. . . . Never has this Committee gone into any community and talked about un-Americanism as it affected Negroes. And therefore to me it wasn’t a committee really concerned with un-Americanism; that it was a committee that was an inquisition; and that the individual members of the Committee used the Committee as a political football to gain glory and *89 prestige in America . . . All my life I have dedicated myself to Negro children. I have attempted to convince them that this was a country in which we could have ultimate real freedom. . . . And it would have been the lowest type of moral courage and morals for me to have permitted myself to become a stool-pigeon and an informer because I had been informed on. I wouldn’t do it. I could not have returned to my classroom under those circumstances. So that when I appeared before the Committee that was my other reason. . . . When I walked into that room I knew that no power, no power on God’s earth could make me become a part of something that I thought was wrong; could make me show my boys and girls that I held the Constitution in contempt. Because for me to have participated in that inquisitorial investigation, to me, would have been showing that I did not believe in the Constitution. . . . I invoked the First Amendment, but I recognize very clearly the position of those people who invoked the Fifth. . . . And I say to you, gentlemen, that if the First Amendment no longer means anything, if my right to test this Amendment is a crime, we have reached a terrible state in America. Democracy is running down the drain. And Negro Americans will be able to achieve nothing in such an atmosphere.”
This speech, which the board had before it when it deliberated upon Mrs. Watson’s fate as a school teacher, is “too much”! At the very least, it is enough, in my estimation, to sustain a finding such as was arrived at. The District Superintendent, the Board, the Pennsylvania Superintendent of Public Instruction, the lower court — all are agreed that Mrs. Watson is “incompetent” within the meaning of Section 1122 of the Public School Cof*e. But the majority of my colleagues would return her to her job by ordering her reinstatement.
I have stated that the charges against her were based on her behavior, her conduct before the committee *90 and that the latter evidenced a contumacious attitude towards its purposes and processes. Her notice of suspension reads in part as follows: “. . . The reason for your suspension is that you have shown a lack of fitness to be a teacher in that you have displayed conduct unbecoming your professional status as a teacher.” The Statement of Charges declared that: “. . . Her conduct before the Sub-Committee of the House Committee on Un-American Activities is incompatible with her status as a professional employe in the Philadelphia public schools. . . . She showed by her conduct a lack of professional fitness to be a teacher. Her conduct makes her incompetent to continue in the service of the Philadelphia public schools, . . .” Upon cross-examination of the Superintendent of Schools who suspended her and preferred the charges, Mrs. Watson’s attorney unsuccessfully attempted to show that her refusal to answer was the sole cause of her dismissal: “by me. dorfman : Q. Dr. IToyer, you testified that the only real reason you suspended her was because she refused to answer these questions on February 17; is that correct? A. On the basis of her appearance before the Committee and her action there, yes. . . . MR. dorfman : Q. I just want to narrow it down. This was the only reason; is that correct? A. Her appearance before that Committee and her reaction to the Committee was the basis for the charges.” In answer to an earlier question by Mr. Soken who asked: “Q. Doctor, are there any other respects in which you consider Mrs. Watson’s conduct before the Committee as constituting unprofessional conduct?”, the Superintendent replied: “Well, I considered Mrs. Watson’s behavior before the Committee of Congress to border on insolence. And that also entered into my consideration at the time this decision of mine was made.” The basis of the charges, then, encompasses far more than a school teacher’s legitimate exercise of a constitutional *91 privilege. She has told the world and the children entrusted to her care what she thought of this subcommittee and has assigned her reasons, which I consider palpably weak, for her refusal to testify. Are those who, under subpoena, go to Washington to testify before duly constituted congressional bodies but who, instead, put on a show of contempt for Congress, are they thereby to become “untouchables”? Due Process? She had it! She received notice of suspension. She was afforded a statement of charges. She was given time to prepare for a public hearing. She appeared at that hearing in person and through counsel. Her attorney exercised the right of cross-examination. .She testified, briefly, on direct. She then made a prolonged, uninterrupted statement that covers seven pages in the record before us. She appealed to the Pennsylvania Superintendent of Public Instruction. She appealed from there to the common pleas Court. She was anything but railroaded to her destination of discharge by the board. Her rights were at all times respected.
With the record as my guide, I vehemently regret .the reinstatement that is promised.
In conclusion, I would but reiterate that I consider Slochower v. Board of Higher Education of New York City, supra, to have (1) been correctly decided, but, (2) absolutely no pertinence, relevance or control visa-vis the instant case. It is distinguishable on many very important grounds: See Nelson v. County of Los Angeles, 362 U.S. 1 (1960). The City Charter there provided for automatic, summary dismissal. By it a discharge from employment, the conditions existing, was inevitable, made mandatory and, therefore, lacking in an allowance of discretion to the proper supervisory officials and in adequate protective procedures. Again, that is not this case.
Mr. Justice Bell joins in this dissenting opinion.
Emphasis throughout supplied.