Washington v. Policy Holders Life Insurance

SPENCE, J.

Plaintiff brought this action to recover upon two life insurance policies. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff, defendant appeals.

After the filing of appellant’s opening brief, respondent made a motion to dismiss or affirm under section 3 of Rule V of the Rules for the Supreme Court and District Courts of Appeal. Points and authorities were filed by respondent in support of his motion and appellant filed its points and authorities in opposition thereto. Upon the hearing, the motion was argued and submitted and the parties stipulated that the cause might stand submitted upon the merits on the points and authorities on file in the event that said motion was denied. In our opinion this is not a proper case to grant the motion to dismiss or affirm under

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the rule. The motion is therefore denied and we shall proceed to a consideration of the appeal on its merits.

In July, 1930, two life insurance policies were issued by appellant to Grace May Washington, the wife of respondent, in which policies respondent was named as beneficiary. Said Grace May Washington died in March, 1932. After the death of the assured appellant attempted to cancel the policies because of alleged false statements regarding her weight and state of health made by the assured in her application. An inspection of the pleadings shows that it was admitted by appellant’s failure to deny that the assured had paid all dues and assessments on each policy “which became due and payable to the defendant under and by virtue of the terms of said policies of insurance within the time and in the manner specified in said policy of insurance”. It was alleged in the answer, however, that in 1931 the assured had failed to pay certain assessments and thereby forfeited her membership and was thereafter reinstated pursuant to her written application for reinstatement dated April 9,1931. Appellant then alleged that the statements contained in the written application for reinstatement were likewise false. Pursuant to the provisions of section 448 of the Code of Civil Procedure, respondent filed a denial of the execution and genuineness of the alleged written application for reinstatement set forth in appellant’s answer. The trial court found against appellant on the issue of the alleged falsity of the statements of the assured and entered judgment for plaintiff.