Comer v. World Insurance Co.

KESTEE, J.,

specially concurring.

I concur in the result, but I cannot agree with the reasoning by which the majority arrive at that result. In my opinion the result could be justified on either of two grounds:(1) Plaintiff did not plead, either in the complaint or in the reply, any fraud or mistake on the part of defendant’s agent in making out the application, nor *133any facts to show that defendant waived or is estopped to rely on the falsity of the answers. When the case was on the equity side, plaintiff pleaded estoppel in his reply; but when the case was tried on the law side plaintiff…