Burr v. Policy Holders Life Ins. Assn.

PARKER, J.,

pro

tem.

The statement of the question involved is given by appellant thus: “The main question agitated upon this appeal involves the doctrine of warranties as applied to the statements and representations made by an applicant for membership in a Mutual Benefit Association organized and operating under the provisions of 452-a of the Civil Code of California.”

The contention is that the insured in her application for insurance asserted statements as to her health and bodily condition which were in fact absolute and strict warranties as to matters about which she was making declaration, and which were false when made, as a consequence of which the warranties so made by her failed and the obligation of the insurer thereupon became void.

In the court below judgment went for the plaintiff, who sued as the beneficiary of the deceased insured.

There seems little dispute as to the law, and strange as it may seem, there is no dispute of facts. In the application for insurance the following questions and answers appear:

[565]

“Q. Are you now in good health? A. Yes. Q. Have you knowledge that any physical disease exists in your system? A. No.”

The application was dated June 3, 1930, and insured died some eight months thereafter. The finding of the trial judge is as follows:

That during a period of eighteen years prior to her death the said insured had at intervals been afflicted with what is commonly known as milk leg and at times ulcers would form on her leg, but said milk leg and ulcers were of a local nature and did not in any way affect her general health and did not contribute to her death.

Appellant does not seriously question the finding nor does he point out wherein the evidence is insufficient in support thereof. It is taken for granted, notwithstanding the finding, that the disease called milk leg was of such a character as to negative the insured’s statement of good health. Assuming this much, appellant then seeks to apply the law relative to warranties.