EMERY v. PACIFIC EMPLOYERS INS CO

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District Court of Appeal, Second District, Division 1, California.

EMERY et al. v. PACIFIC EMPLOYERS INS. CO.*

Civ. 10063.

Decided: July 17, 1936

Kenneth J. Murphy and Ralph E. Lewis, both of Los Angeles, for appellant. Jules C. Goldstone and Paul J. Ziegler, both of Los Angeles, for respondents.

This is an appeal from a judgment on a verdict returned after direction of the trial court to enter said judgment in favor of the plaintiffs and against defendant.

The statement of the question involved contained in appellant's brief is as follows:

“In an action on an automobile liability insurance policy, where the defense made was that the policy had never attached to the risk but was void ab initio by reason of the falsity of a representation made by the insured in his application for insurance and in the policy itself, to the effect that no prior company had refused the risk or canceled, can a directed verdict be justified when evidence had actually been received that at least one prior policy had been canceled?

“In a case involving a directed verdict, does the exclusion of evidence offered tending to show cancellation of prior policies proving falsity of material representations constitute reversible error?”

In order for the appellant to be entitled to the defense set up by it in a case of this kind, it would be required to show a certain and positive falsity of the representation claimed to have been made, and this its evidence fails to do. The record also fails to disclose anything from which we can decide that the court excluded evidence which would show a cancellation of prior policies in such a manner as to prove the falsity of any material allegation made in the application for the policy. There is nothing in the record which shows cancellation of any policy, except by mutual agreement. The evidence possibly discloses an attempt by an insurance company to avoid a direct cancellation on its part, but nothing in the evidence offered or introduced tends to prove a direct cancellation at any time by any insurance company of any prior insurance carried by the insured, excepting this evidence offered, which was only that of cancellation by mutual consent, which could not, under the terms and conditions of the policy in question, make void ab initio the policy here sued upon. At the most, there may have been a failure to frankly disclose all relations with other insurance companies. However, if such full disclosure had been desired, the application for the policy in question should have contained more definite questions regarding such transactions. These questions having been propounded and formulated by the defendant corporation, and having been answered truthfully, although without a full disclosure as to all details of the dealings of the insured with other companies, appellant cannot claim, after a loss has been suffered, that it was deceived in such a way as to make the policy void ab initio.

We think this disposes of all questions raised on this appeal.

The judgment is affirmed.

YORK, Justice.

We concur: HOUSER, P. J.; DORAN, J.

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