Branham v. Capital Life & Health Ins. Co.

Baker, Chief Justice.

This is an action in fraud and deceit brought by the respondent against the appellant in relation to a policy of insurance issued by the latter providing for hospital and death benefits.

In an earlier action between the same parties, the respondent charged breach of contract, with allegations pointing to fraud in the breach. Appellant’s counsel moved to require *69the respondent to elect whether he would proceed upon the theory of a fraudulent breach of contract or upon the theory of fraud and deceit, whereupon respondent’s counsel stated that he interpreted the action as one…