Campion v. Continental Casualty Co.

CAMPBELL, J.,

pro tem.

This is an action to recover certain monthly indemnities alleged to be due plaintiff from defendant corporation on an insurance contract.

On July 19, 1922, defendant issued to plaintiff the insurance policy in question, and on November 4, 1926, plaintiff sustained injuries which resulted in her total disability. Some two months after the accident causing the injury plaintiff made her first claim for compensation. After an investigation the company commenced paying the monthly indemnity called for in the contract of insurance. Pour such payments were made, after which defendant company refused further payment, claiming that plaintiff had a very pronounced scoliosis (curvature of the spine), which scoliosis contributed to the disability of plaintiff. The court found in favor of plaintiff and rendered her judgment in the amount of $130 per month from March 17, 1927, to the date of the judgment, with interest at seven per cent per annum until paid. Motion for new trial was made and denied and defendant has appealed from the judgment and the order denying a new trial.

Appellant urges that respondent made representations in her application for the insurance contract which were false and consequently void the policy; failed to establish her case by a preponderance of the evidence, and the findings

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of fact are not supported by the evidence. The false • representation by respondent in her application for insurance, which appellant claims voids the policy, is: “I have not, nor am I now suffering from . . . any chronic or periodical mental or physical ailment or disease, nor am I crippled or maimed, nor have I any defect in hearing, vision, mind or body. No exceptions.” As proof of her statement being false appellants directs us to the testimony of the doctors—five in number—who testified at the trial, who said that respondent did have a pronounced scoliosis. None of them, however, examined her until after the accident, over four years subsequent to the date of her application for a policy, when her statement claimed to be false was made.

In support of its contention that this asserted false statement voids the policy appellant has cited us to section 2580 of the Civil Code: “If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false,” and section 2610 of the same code: “The violation of a material warranty, or other material provisions of the policy, on the part of either party thereto, entitles the other to rescind,” and to authorities holding the general rule to be that warranties as to health of the insured will be strictly construed, and if false in any particular, the policy will be voided, regardless of the good faith of the assured.