Wernecke

The plaintiff, as beneficiary under an interim insurance contract, brought this action against the *885 defendant insurance company, the insurer, to recover insurance allegedly due on account of the death of her husband, the insured. The insurance contract arose out of the insured’s application for insurance and his payment of an amount equal to the first premium, for which a receipt was given him by the selling agent. Plaintiff introduced in evidence the application, the cancelled check evidencing payment of the premium amount, the receipt, and proof of death. She also offered to prove that at the time the application was taken by the selling agent, the latter stated if the premium were paid at that time Mr. Wernecke would be “covered,” and “in case he was killed the following day in a freeway accident or some other such mishap there would be coverage for the family”; and that this representation “was a product of a sort of prepared sales approach” used in the insurance business. An objection to the offer of proof was sustained. Without introducing further evidence, plaintiff rested. Thereupon, defendant moved for a nonsuit, which was granted, and judgment was entered…

I concur that the judgment of nonsuit *889 should be reversed, but for reasons other than those upon which the majority opinion rests.

The action was by the beneficiary named in an application for insurance by an applicant who met his death by accident the day following the making of the application and the issuance to him of a receipt, the language of which, almost in full, is set out in the majority opinion. I agree with the trial court that the language of the receipt is unambiguous.

However, the amended complaint here alleged the satisfaction of the conditions set forth in the receipt; the answer did not deny the allegation of satisfaction of the conditions. The pretrial order did not define as an issue whether the applicant was insurable at the time the payment was made.

Defendant, by answer, set up the special defense of false representations and concealment as to the decedent’s medical history. It did not allege that applicant was noninsurable on medical grounds at the time of his application, but rather that defendant would not have acted as it did with regard to the application for insurance but for the false representation and concealment.

Because of the admission by…

The plaintiff, as beneficiary under an interim insurance contract, brought this action against the defendant insurance company, the insurer, to recover insurance allegedly due on account of the death of her husband, the insured. The insurance contract arose out of the insured's application for insurance and his payment of an amount equal to the first premium, for which a receipt was given him by the selling agent. Plaintiff introduced in evidence the application, the cancelled check evidencing payment of the premium amount, the receipt, and proof of death. She also offered to prove that at the time the application was taken by the selling agent, the latter stated if the premium were paid at that time Mr. Wernecke would be "covered," and "in case he was killed the following day in a freeway accident or some other such mishap there would be coverage for the family"; and that this representation "was a product of a sort of prepared sales approach" used in the insurance business. An objection to the offer of proof was sustained. Without introducing further evidence, plaintiff rested. Thereupon, defendant moved for a nonsuit, which was granted, and judgment was entered…