Chun Ngit Ngan v. Prudential Insurance Co. of America , 28 Haw. 157 ( 1924 )

OPINION OF THE COURT BY

PERRY, J.

(Peters, C. J., dissenting.)

The defendant in error moves for a rehearing on the grounds that “the keystone of the decision” in this cause is contained in its statement that “the rule sometimes referred to in construing policies of insurance, that their language, because it was chosen by the insurer, is in case of ambiguity to be taken most strongly against the insurer is not applicable in this instance because there is a statute, in this Territory requiring the inclusion in all policies of life insurance of a clause providing for incontestability after the lapse of two years from their issuance;” that this “statement of the rule is against the great weight of authority in this country;” that “the point was decided without argument by counsel” and without its having been raised by the plaintiff in error; that the statute (L. 1917, Act 115, Sec. 50, Subd. 3) did not require the insertion in the policy under consideration of the particular clause relating to incontestability there appearing; and that the decision “is contradictory in that it rejects the rule that the policy shall be construed in favor of the insured or his beneficiary because of the insurance statute of the Territory and yet construes the policy under section three of the majority opinion as having been drafted by the insurer and as containing the language which the insurer desired most to use.”

Thompson, Cathcart & Beebe for the petition.

In the opinion filed the conclusion of the majority was not based upon any ambiguity of the language used in the contract. No ambiguity was found in the clause relating to incontestability but on the contrary comment was made upon the uniformity of definition in the dictionaries of the leading words involved. For this reason, therefore, if for no other, the rule of construction referred to in the petition for rehearing is inapplicable in the case at bar.

The prohibition of section 2259, E. L. 1915, against the decision of points not argued by counsel is directed merely to points which are “material tq the decision of the case.” The question of whether or not the statute rendered the rule of construction inapplicable in case of ambiguity was not material to the decision of this case. A rehearing or reconsideration of the point could not possibly affect the conclusion of the court that the judgment appealed from must be reversed.

The petition is denied without argument, under the rule.