140 Cal. App. 139 | Cal. Ct. App. | 1934
In an action for insurance by the widow of a member of the defendant life and benefit association, both an answer and an affirmative defense were interposed, and judgment being given in favor of the plaintiff on the pleadings, said defendant appealed.
The existence and character of the insurer, application for membership and issuance of a policy, payment of assessments and charges, and sufficiency of funds with which to pay the full amount, which was refused, were admitted. It was alleged and admitted that pursuant to the constitution
The policy, issued some two years before liability was claimed, provided that the same “except for fraud shall be incontestable after one year from its date of issue”. It is insisted by the respondent that where an applicant certifies to his good health according to the best of his knowledge and belief, recovery will not be denied if it appear that he had reason to believe and did believe that he was in good health (Couch on Insurance, p. 2725), and said answer failed to raise the issue. By comparison of the language, the question is set at rest. It was charged in the answer in effect that each and every of the conditions requisite to the issuance of a policy were found to have been misrepresented with knowledge of the applicant that the statements were false. Dibble v. Reliance Life Ins. Co., 170 Cal. 199 [149 Pac. 171, Ann. Cas. 1917B, 34], cited by respondent, held that section 1668 of the Civil Code, providing that: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud . . . are against the policy of the law”, does not apply to a case in which the effect of such clause is merely to limit the time within which fraud may be urged as a defense to a reasonable time in the interest of repose and security. By
However, appellant in the instant case relied upon the provision, “there are no restrictions under this policy on travel, residence, occupation, or military or naval service, and except for fraud shall be incontestable after one year from its date of issue”, and denied that the insured was in good standing. Differing from the ease from which we have just quoted, the clause was not made dependent upon a condition which the parties can be said to have omitted so as to leave it ambiguous. The defendant here alleged elements of fraud, except for which the parties stipulated the policy should be incontestable. In Dibble v. Reliance Life Ins. Co., supra, the opinion states there was “no distinction between the condition precedent as to the delivery of the policy while in good health and statements in the application which were made warranties, and that unless expressly excluded they were all covered by the agreement not to contest the policy”. The purport of the decision is that the one-year limitation was intended for the purpose of permitting inquiry as to the truth or falsity of representations. In Boyer v. United States Fidelity & Guaranty Co., 206 Cal. 273 [274 Pac. 57], policies were issued upon stated representations, one of which was the relationship of brother and sister between the insured and the beneficiary. Upon receipt of notice of liability, the in
Nor is the alleged defense in conflict with the rule cited by the respondent that where a warranty is that a statement is true so far as known to the applicant, knowl
The judgment is reversed.
'Stephens, P. J., and Scott, J., pro tern., concurred.