Metzinger

I dissent. I would affirm the judgment for the reasons expressed by Mr. Acting Presiding Justice Fourt in the opinion prepared by him for the Court of Appeal in Metzinger v. Manhattan Life Ins. Co. (Cal. App.) 75 Cal.Rptr. 621 .

Plaintiffs are the named beneficiaries of group insurance on the life of one Cholodenko. 1 They appeal from a judgment denying recovery thereon and declaring the insurance contract null and void for fraudulent representations made in the application therefor. As will appear, we have concluded that the judgment should be reversed for failure of defendant to establish its compliance with a contract provision for furnishing a copy of the application to the beneficiaries or to the insured prior to the latter’s death.

Plaintiffs and Cholodenko were stockholders, officers and directors of the M & M Meat Company, Inc. In April 1963 Cholodenko submitted a written health application to defendant insurance company, seeking insurance on his life under a group policy issued by defendant to a group insurance trust, of which group M & M was a member. In the application' Cholodenko represented that he was in good health, that he had never had cancer, an ulcer of the stomach or duodenum, or any chronic disease, and that during the preceding two years he had not consulted with or been treated by any surgeon or practitioner except for regular medical checkups.

In June 1963 defendant approved the…