TROUSDELL v. EQUITABLE LIFE ASSUR SOC OF THE UNITED STATES (1942)

In its petitions for rehearings the appellant complains that we placed too great a burden upon them in reference to the issue of the alleged false representations preceding the executions of the contracts of insurance. The discussion referred to appears in the portion of the opinion relating to appellant's claim that the evidence was insufficient to support the findings upon this issue. We thought it was clear that the quoted language was taken verbatim from these allegations of the cross–complaint, which the trial court found to be untrue. It was not the purpose of the opinion to state a different rule as to the burden of proof upon that issue.

Appellant also urges rehearings in order to give reconsideration of the rule announced in Coodley v. New York Life Ins. Co., 9 Cal.2d 269, 70 P.2d 602, and similar cases on the issue of the incontestability clause of the policies. We can see no purpose in taking such action. The decisions of the supreme court are controlling upon the district court of appeal, and we would not be justified in departing from the rule of the Coodley case notwithstanding the decisions to the contrary found in other jurisdictions.

The petitions for rehearings in both cases are denied.

NOURSE, Presiding Judge.