Whitney v. West Coast Life Insurance

California Court of Appeal Sep 10, 1920 No. Civ. No. 3537.Published

Before: Waste

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Holding. The court affirmed a directed verdict for the defendant insurer, holding that the evidence of the insured's fraudulent concealment of his medical history remained unchanged from the prior appeal, thereby establishing the law of the case.

Issues

Whether the trial court correctly directed a verdict for the defendant based on the law of the case established in a prior appeal.
Whether new evidence presented at the second trial was sufficient to overcome the prior finding of fraudulent concealment by the insured.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The facts and the evidence are the same upon both appeals, with the immaterial exception noted. The decision in the former appeal therefore becomes the law in this.”

“The views expressed by the supreme court on the former appeal must control the law of the case; and it was the duty of the trial court to give effect to those views by declining to submit the question to the jury”

WASTE, P. J.

Plaintiff brought this action to recover upon a life insurance policy for ten thousand dollars, issued by the defendant on the life of her husband and in her favor. In the first trial of the cause a verdict was rendered in favor of the plaintiff. A motion for a new trial was made and denied. On appeal to the supreme court, the judgment and order were reversed.

(Whitney

West Coast Life Ins. Co.,

177 Cal. 74, [169 Pac. 997].) On the second trial the court directed the jury to bring in a verdict in favor of the defendant, which was done, and judgment was thereupon entered. A motion for a new trial was made' and denied and the plaintiff has appealed.

Mr. Whitney died June 10, 1914, of acute myocarditis, a disease of the heart. The defense at the first trial vas based upon the assertion that Arthur L. Whitney, the assured, made false representations in his application to the defendant for insurance, and was guilty of fraud in securing the policy, in that he concealed from the defendant’s medical examiner the fact that before making his application, he had consulted certain physicians as to his physical condition, and failed to report the results of their examination, as given to him. By the terms of the policy all insurance thereunder was based upon the written and printed application therefor, which, by attached copy, was made a part of the contract. In his answers to questions contained in the application for insurance,, Mr. Whitney made, among others, the following representations:

“Q. Have you now or have you ever had shortness of breath ? A. No.

“Q. Have you now or have you ever had disease or palpitation of the heart?

Á.

No.

, “Q. Give particulars of any injury or illness br attendance of physician that may have occurred during the past seven years. A. Burn of arm and chest. Dates, 1911. Duration,'one week. Physician consulted, Dr. Chidester.”

Whitney had been afflicted with a shortness of breath, which seemed to him so alarming as to cause him to seek the advice of a physician some four months prior to the

[231]

Whitney v. West Coast Life Insurance

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WASTE, P. J.

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