Opinion
No. 16702
10-11-1956
Elizabeth R. COHEN, Plaintiff and Respondent, v. The PENN MUTUAL LIFE INSURANCE COMPANY, a Corporation, Defendant and Appellant.*
Henry C. Clausen, Henry C. Clausen, Jr., Walker Lowry, San Francisco (McCutchen, Thomas, Matthew, Griffiths & Greene, San Francisco, of counsel), for appellant. Rockwell & Fulkerson, San Rafael, for respondent.
Elizabeth R. COHEN, Plaintiff and Respondent,
v.
The PENN MUTUAL LIFE INSURANCE COMPANY, a Corporation, Defendant and Appellant.*
Henry C. Clausen, Henry C. Clausen, Jr., Walker Lowry, San Francisco (McCutchen, Thomas, Matthew, Griffiths & Greene, San Francisco, of counsel), for appellant.
Rockwell & Fulkerson, San Rafael, for respondent.
PER CURIAM.
Upon petition for rehearing plaintiff for the first time calls attention to the fact that one of the three incomplete instructions based on section 334 of the Insurance Code was at the end of a paragraph the preceding sentence of which did state that materiality 'is to be determined not by the event, such as whether or not an electrocardiogram was given Sydney J. Cohen in the course of his physical examination made by the United States Army, but rather materiality is to be determined solely by the probable and reasonable influence of that fact upon the defendant insurance company in forming its estimate of the disadvantages of the proposed policy of insurance or in making its inquiries.'
We are not persuaded to a different conclusion by the discovery of the words 'or in making its inquiries,' occurring as they did in the middle of a paragraph and in a separate sentence from the instructions which positively, repetively, and in clearly expressed terms told the jury that the test of materiality is whether or not the true facts, if known, would have rendered the contract 'less desirable' to the insurance company. The very fact that plaintiff did not until now direct our attention to the words 'or in making its inquiries' (whether that means that plaintiff did not until now discover them or did not until now attach significance to them) emphasizes the unlikelihood that the jury while listening to the reading of the instructions (all of them) sifted those words out, became sensitive to their full meaning, and with due consideration and care applied them to the facts of the case.
Another point not urged before (at least, not with the emphasis plaintiff now gives it) is the claim that defendant did not prepare and request an instruction on materiality based upon section 334 of the Insurance Code and, therefore, is in no position to assert error in the instructions on that subject which the court did give. Specifically, the claim is that, at most, the challenged instruction was merely incomplete (in the sense that it may not have gone far enough; yet, did not amount to an incorrect statement of law); hence, if defendant wanted the gap or details filled in, it was under a duty to prepare and submit an instruction designed to accomplish that purpose. As to the erroneous character of the intruction, we are not persuaded to a view different from that expressed in the opinion on file see ---- Cal.App. ----, 301 P.2d 253. In such a case, a party is entitled to a correct statement of the applicable legal principle, at least when an instruction on the subject in question is given. He need not interpose a specific objection at the time the instruction is given. '[G]iving an instruction' is 'deemed to have been excepted to.' Code Civ.Proc. § 647; 1 Pipoly v. Benson, 1942, 20 Cal.2d 366, 369, 125 P.2d 482, 147 A.L.R. 515. Indeed, even if a party requests and the court rejects an erroneous instruction, that does not of itself justify the giving of an erroneous instruction not requested by that party. Jermane v. Forfar, 108 Cal.App.2d 849, 855- 856, 240 P.2d 351, 30 A.L.R.2d 860, and authorities there cited.
Plaintiff's petition for rehearing is denied. --------------- * Opinion vacated 312 P.2d 241. 1 The 1953 amendment of section 647, Stats.1953, ch. 715, p. 1984 introduced a potential ambiguity. That amendment interpolated (between the expression 'any misstatement * * * in commenting upon or in summarizing the evidence,' and the concluding declaration 'are deemed excepted to') the following: 'and, if the party, at the time when the order, ruling, action or decision is sought or made, or within a reasonable time thereafter, makes known his position thereon, by objection or otherwise, all other orders, rulings, actions or decisions'. Did the Legislature thereby intend to require an aggrieved party to make timely objection to each of the many orders and rulings which for several decades had been 'deemed excepted to'? We think not. It reasonably appears that the intendment of the 1953 insert was to deem 'all other' orders, rulings, actions and decisions excepted if the party 'at the time' or 'within a reasonable time thereafter' makes 'known his position thereon'; not to require any objection, then or later, to any order, action or decision not embraced within the 'all other' category.