Opinion
November, 1935.
Action on a policy of life insurance in which plaintiff is named as beneficiary. Under its terms the policy might be reinstated "upon written application and payment of arrears of premiums * * *, and provided evidence of the insurability of the Insured satisfactory to the Company be furnished." The defenses pleaded are that the policy lapsed for non-payment of premiums and that its attempted reinstatement was ineffectual because evidence of the insurability of the insured had not been furnished. The court found the policy had been reinstated, but dismissed the complaint on the ground that the insured in his application for reinstatement misrepresented material facts respecting his physical condition prior to and at the time he signed the application. The court's decision was based on an issue not raised by the pleadings. However, as the evidence clearly shows that the policy was not reinstated and the judgment is correct, it must be affirmed even though the court's decision was founded upon a wrong reason. Judgment dismissing the complaint after a trial without a jury affirmed, with costs. Hagarty, Carswell and Johnston, JJ., concur; Young and Davis, JJ., dissent and vote for reversal and a new trial.