Tennesen v. Prudential Insurance of America

THOMPSON, J. One question only is involved on this appeal. The suit is based on an insurance policy on the life of the deceased husband of the plaintiff. It is contended the superior court had no jurisdiction to determine the cause for the reason that the pleadings confer exclusive jurisdiction on the Municipal Court of Los Angeles County under the statutory provisions. (Stats. 1925, p. 648, and amendments thereof; 2 Deering’s Gen. Laws of 1931, p. 2925, Act 5238, sec. 29; sec. 89, Code Civ. Proc.)

The complaint was filed by the appellant in the superior court. It contains three counts. The issuing of the life insurance policy and the death of the insured are alleged. The first count asserts full performance of the contract. The second count alleges that the company procured the insured to unnecessarily sign a written petition for reinstatement of the policy, by means of fraud, knowing that the policy had not then lapsed for failure to pay the premiums thereon. The third count asserts that the company waived the termination of the contract by subsequently accepting payments of deferred premiums. The prayer demands a cancellation of the reinstatement instrument because of the alleged fraud of the company, and for judgment in the sum of $2,000 and interest thereon from the date of the death of the insured which occurred February 6, 1932.

The answer admits the execution of the insurance policy but denies liability thereunder on the ground that the reinstatement of the policy was procured by the fraud of the insured. The material allegations of the complaint were denied. The answer then separately and affirmatively alleges that the policy lapsed under the express terms thereof, by failure of the insured to pay the quarterly premium which was due thereon September 2, 1931, and that the insured thereafter procured the reinstatement of the policy by making a written statement therefor, containing fraudulent declarations, that the insured was not then, afflicted with any physical ailment for which he had previously received medical aid; that contrary to the written declarations of the insured in his appli[162]cation for reinstatement of the policy he was then suffering from serious physical ailments from which he subsequently died, and on account of which he had previously received medical attention; that the policy was thereby rendered void; that the insurance company reinstated the policy October 22, 1931, relying solely on the written statements of the insured with respect to his physical condition at that time, and that upon discovering the falsity of these statements the insurance company promptly notified the insured in February, 1932, of the rescission of the contract for such fraud, and then offered to repay to him all premiums received subsequent to the reinstatement of the policy. The answer asks for the termination of the policy for fraud, and prays for judgment that the plaintiff take nothing by his cause of action.