Scoles v. Universal Life Insurance

42 Cal. 523 | Cal. | 1872

By the Court, Rhodes, J.:

The verdict will not be disturbed on the ground that it is contrary to the evidence, upon the issue as to whether any false statements were made by Paul Scoles, the person whose life was insured, for there is a manifest conflict in the evidence upon the points which have been discussed by counsel. It may be doubted whether any misrepresentations were in issue, except such as were specified in the answer, but we express no opinion on the point.

We see no error in the instructions given by the Court; and we are of the opinion that the refusal to give those requested by the defendant was not erroneous, except in respect to one instruction. Among the questions propounded to the insured was the following: “ Have you had any serious illness, local disease, or personal injury; and, if so, of what nature, and how long since? ” And the answer given was: “Hot any.” There was evidence tending to prove that the insured had consumption, or tubercles upon the lungs, and tubercles upon the brain. The defendant requested this instruction: “You are also instructed that a tubercular affection of the lungs, or tubercles upon the lungs, or tubercles upon the brain, or consumption, would either of them constitute a local disease, within the meaning of that term, as used in the application of Paul Scoles.” "W"e think such diseases as those mentioned in the proposed instruction would clearly come within the definition of a local disease; and that the jury should have been so instructed, as matter of law. It was not enough that'the jury were instructed that, if Paul Scoles had had a serious local disease, then the plaintiff could not recover; but the defendant had a right to have them instructed that a particular disease, in respect to which there was evidence before them, came within the meaning of the term local disease, as used in the application of the insured.

Judgment and order reversed, and cause remanded for a new trial.