125 Cal. 345 | Cal. | 1899
This is an action on a policy of accident insurance. The case was tried with a jury in the court below, and the verdict and judgment went for the plaintiff. The appeal is taken from the judgment and order denying a new trial. The assured, George B. Bayley, was killed by an accident, and the plaintiff, his widow, is the person in whose favor the policy ran.
There are two questions presented by the appellant: 1. That the-assured represented, in his written application for the policy, that he had never proposed and been declined insurance by an accident insurance company, and that this was not true; 2. That he represented in said application that he had never received compensation for any accident, whereas he had in November, 1892, and also in the year 1886, received compensation on account of injuries he had sustained by previous -accidents.
The first defense is eliminated from consideration here by the fact that the verdict of the jury was against the defendant, and the evidence bearing upon that defense was materially conflicting, and hence the verdict cannot be disturbed.
As to the second defense: In the application the fifteenth statement is as follows: “I have never received compensation for any accident except as herein stated (names of companies or associations, with amount of compensation)”; and there was no statement as to any compensation being received. It was shown, however, that the deceased had been paid for an accident in 1892, and also in 1886. But at the time of the application for the policy in question the defendant company and its officers knew that the assured, Bayley, had received payments in 1892, not only from its own company, but from three others. Mr. Okell, the general manager of the defendant on this coast,
Mr. Thompson, the clerk and cashier of the general manager here, was asked: “I will ask you why it is that, if as cashier of the company at that time you knew that Bayley had received compensation from the Employers’ Liability Company, you did not change or correct the statement T have never received compensation for any accident except as herein stated ?’ A. Seeing the loss had been paid by our own company, and the new application written in the same, there was no necessity of making that note on it as to the payment of our own loss.”
In Menk v. Home Ins. Co., 76 Cal. 53, 9 Am. St. Rep. 158, in the opinion in Bank it is said: “If the agent, knowing all the essential facts, made Out the application for plaintiff, the company cannot take advantage of defective statements contained in it as not complying with the requirements of the company; nor would misstatements be fatal to the claim of plaintiff which the agent well, knew to be false when he made out the application, received the money of the applicant, and issued the policy. The tendency of the decisions is plainly to hold all those conditions waived which to the knowledge of the agent would make the policy void as soon as delivered. Otherwise, the company would knowingly receive the money of the applicant without value returned, and the whole transaction would be a palpable fraud.” (Kruger v. Western Fire etc. Ins. Co., 72 Cal. 91; 1 Am. St. Rep. 42.)
But it is contended that, although the company may be deemed to have waived any mention of the payments made in 1892, of which it had knowledge, still it was necessary for Bayley to insert the payment made to the Travelers’ Company in 1886. It will be seen from the form of the application, dates and different times compensation had been made were not required; only "names of companies or associations, with amount of compensation.” But the defendant already knew that the-Travelers’ Company had paid Bayley, and therefore it was not necessary to again mention that company; and, as the dates of payment were not required, it would have been a literal compliance with the form to have added the small amount received in 1886 to the much larger sum paid in 1892, which latter, as already shown, was waived.
The weekly indemnities paid for loss of over nine weeks’ time in 1892 were in consequence of severe injuries received by Bayley while descending from th'e summit of Mt. Tacoma or Rainier. The companies, other than the defendant, paying weekly indemnities for such loss of time, were the Pacific Mutual, Travelers, and Pacific Surety Company. Mr. Okell, general agent of defendant, having knowledge of these facts, says he knew of no reason why he should not insure Bayley for twenty thousand dollars. Bayley, it seems, had a personal interview with the general agent, and talked matters over with him about issuing the policy, and the company’s clerk, Thompson, prepared the application, filling out the blanks, but omitting entirely any mention of prior payments or compensation, although he was well aware such had been made.
It is, therefore, reasonable to suppose Bayley considered the fifteenth paragraph as waived. Neither party to a contract of insurance is bound to communicate information of matters of which the other waives communication, except in answer to inquiries. (Civ. Code, sec. 2564.) This case is distinguishable from Mutual Life Ins. Co. v. Nichols (Tex. Civ. App., Jan. 17,
The term “compensation” in the fifteenth subdivision of the application is, in this connection, in a measure ambiguous and uncertain as to its meaning. An inspection of the policy and application will show that when payment for loss of time is spoken of the word “indemnity” is used, and not used where payments are made for loss of life, limb, or eye. The policy pays for several different contingencies: 1. For death, the principal sum; 2. For the loss of two hands, two feet, one entire hand, or one entire foot, or permanent loss of sight of both eyes, principal sum; 3. For loss of one hand or one foot, one-half principal sum; 4. One hundred dollars per week so .long as insured is wholly disabled from prosecuting any business pertaining to his occupation. In reference to the fourth payment the term “indemnity” is used entirely. Thus in the policy and indorsement thereon we find: “All sums paid as weekly indemnity .... shall by so much diminish the said principal in case of claim for said principal. .... If the insured is injured in any occupation or exposure classed by this corporation as more hazardous than herein given, his insurance and weekly indemnity shall be,” et cetera. “No claim for weekly indemnity in excess of the money value of the insured time shall be valid. . . . . The total risk taken by this corporation is- dollars for loss of life and-dollars weekly indemnity.”
And the application contains the following: “The amount of insurance against accidental death or permanent total disablement hereby applied for is twenty thousand dollars. The amount of insurance against permanent partial disablement hereby applied for is $10,000. The amount of weekly indemnity for total disabling injuries hereby applied for is $100.00.” Further down in the application we find statements as follows: “I have no other accident insurance covering weekly indemnity except as herein stated” (names of companies or associations, and amount of weekly indemnity in each), and there is inserted “Aetna, $10,000.” Then comes the subdivision under consideration, already quoted. It would appear from the foregoing
The defense urged in this case is purely technical, and does not go to the merits.
The judgment and order denying a new trial are affirmed.
Harrison, J., Garoutte, J., McFarland, J., and Henshaw, J., concurred.
Behearing denied.