Benjamin Franklin Life Assurance Co. v. Mitchell

DORAN, J.

This is an appeal from a judgment in favor of petitioner, the Benjamin Franklin Life Assurance Company, and against respondent E. Forrest Mitchell, Insurance Commissioner of the State of California, in a

mandamus

proceeding wherein the judgment ordered respondent commissioner to approve petitioner’s “certain form of application for and policy of indemnity against loss ...”

Respondent company’s petition for a writ of mandate alleged that it was and is authorized to engage in the business “of life, health, accident, annuity and endowment insurance on the assessment plan as provided for by Chapter VI, Title 2, Part 4, Division 1 of the Civil Code of the State of California”.

It appears from the record herein that petitioner submitted for respondent commissioner’s approval a certain form of an

[656]

application for, and a policy of indemnity against loss by reason of medical and hospital expenses occasioned by disease or injury suffered by the insured. Said application and policy in addition to its general clauses provided, quoting from the policy, that the insurance company “Hereby agrees to 'reimburse the Insured for actual expenditures made or obligations incurred for any of the services, hereinafter set forth (paragraphs A to K inclusive) to be and only when rendered by, while the Insured is wholly under the care of, legally qualified Doctors of Medicine and Surgery, Optometrists, Hospitals, Ambulances, Pharmacies and X-Ray Medical Laboratories, approved and designated by the Policyholders Committee of the Company for the benefit of the Insured, ...”

The application for a policy bound the applicant to the performance of a certain condition which, quoting from the application, was as follows: “I hereby appoint and empower the Policy-Holders Committee of the Company, duly elected at each regular annual meeting of policyholders on first Monday in January of each year as per the By-laws of the Company, my true and lawful attorney in fact and m.y proxy for a period of seven years to represent me and to vote for me in my stead, should I be absent or fail to revoke this proxy in writing, in all regular and special meetings of policy-holders, and to approve and designate for me, during the life of the policy, the renderers of the services under the terms of the policy for which I am applying ...”