Hawkins v. New York Life Insurance

Thiele, J.

(dissenting): I, dissent from that portion of the fore-

going opinion repudiating the rule as to “moral risk” first promulgated in Becker v. Surety Co., supra, in 1919, and since recognized and followed until today. In the period of over thirty-four years since it was announced the legislature has met repeatedly. In 1927 it enacted a revision of our statutes pertaining to insurance (Laws 1927, Ch. 231) and made no effort to change the rule promulgated in 1919, nor since the decision in DePee v. National Life & Accident Ins. Co., supra, in 1936, has it changed the rule. I think the rule is sound and should be adhered to and followed. To me, the instant case shows conclusively that there was concealment of facts material to the risk assumed by the company when it issued the policy, and a fraud which, if the truth had been disclosed, would have prevented issuance of the policy. The appellant’s demurrer to the appellees’ evidence should have been sustained.

Wedell and Price, JJ., concur in .the foregoing dissent.