Chun Ngit Ngan v. Prudential Insurance Co. of America

28 Haw. 392

• Court: Hawaii Supreme Court
• Decided: May 11, 1925
• Docket: No. 1612.
• Status: Published

Opinions

OPINION OP THE COURT BY

PERRY, J.

(Peters, C. J., dissenting.)

The prior history of this case is recited in our opinion reported ante, 99. The first judgment was set aside and a new trial granted. At the second trial, by stipulation of the parties, the cause was presented to the court, jury waived, upon the evidence adduced at the first trial together with the following additional evidence on defendant’s behalf:

“That Yuen Tai Kam, the insured named in the insurance policy, the subject-matter of this action, died intestate, without issue, his father, Jim Jan, and his widow, plaintiff herein, Chun Ngit Ngan, surviving him, said father and widow being residents of the Territory of Hawaii;

“That Chun Ngit Ngan, his widow, is the person named as beneficiary in the policy of insurance referred to;

“That on April 11, 1923, a petition for the appointment of an administrator of the estate of Yuen Tai Kam was filed in the circuit court of the first circuit, Territory of Hawaii, and that thereafter and on the 29th day of May, 1923, administrators of said estate were duly appointed and qualified as such; defendant’s evidence relative to tender hack of premiums paid and demand for surrender of policy for cancellation, relative to fraud of insured in making application for the policy which is the subject-matter of this action and relative to probate proceedings in the estate of said Yuen Tai Kam, being admitted over plaintiff’s objection that the same is incompetent, irrelevant and immaterial.”

Following our prior opinion the trial court thereupon entered judgment for the defendant. From that second judgment the case comes to this court on a writ of error.

In addition to relying upon its former briefs and the former opinion of this court, the insurance company now presents the following contentions: (1) that “the notice by tbe insurer to Chun Ngit Ngan of tbe repudiation of tbe policy, tender to ber of tbe premium paid and demand for return of tbe policy was a rescission of sucb policy and therefore a contest thereof” and (2) that “the insurer herein contested tbe policy sued upon by judicial action within tbe period of contestability allowed by tbe policy,” due to tbe fact, as it is further contended, that tbe time elapsing from tbe date of tbe death of insured to tbe date of tbe appointment of tbe administrators should not be considered as a part of tbe period of one year referred to in the clause of incontestability.

Thompson, Gathcwt & Beebe for plaintiff in,error. Frew, Prosser, Anderson & Marx and A. E. Steadman for defendant in error.

We deem it to be unnecessary to consider either of these contentions. Upon tbe reasoning contained in our former opinion, tbe judgment- for tbe defendant is affirmed.