28 N.Y.S. 756 | City of New York Municipal Court | 1894
This action was brought to recover $1,000 on a policy of insurance issued on the life of Elizabeth Kelly by the defendant, payable to the plaintiff. The answer is entirely affirmative. The defense is based upon alleged breaches of warranty by Elizabeth Kelly of the truth of statements made by her in writing and upon which warranty the
The court thereupon charged the jury, and to which charge the defendant’s counsel took the following exceptions :
I. To that part of the charge wherein it is charged that Elizabeth Kelly must have known her statements to be false, before the jury can find for the defendant.
II. To that part of the charge wherein it is charged that if Elizabeth Kelly did not know she had been rejected, the company is liable.
III. To that part of the charge wherein it is charged that if plaintiff relied on the statements made by the company or its officers, and which were made after the issuance of the policy, even although those statements were not in writing or signed by the officers, plaintiff can recover.
The plaintiff must stand or fall on the contract or policy and the applications which form part thereof and are in evidence. By these the plaintiff agreed that the answers and statements in this application, whether written by the applicant or not, are warranted to be full, complete and true, and that this agreement and the constitution and by-laws of the association, with the amendments thereto, together with this application, are hereby made part of any policy that may issue hereon. That if any of the answers or statements made are not full, complete and true, or if any condition or agreement shall not be fulfilled as required by such policy, the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to such association. That the person soliciting or taking this application, and also the
This, then, made the person soliciting and taking this application the agent of the applicant as to all statements and answers contained in the application and binding on the insured, and any untrue or false statement or answers made by him must bind and control her liability in accordance with the terms of the contract. Elliott v. Mutmal Benefit Life Assn., 16 Hun, 378. Whether she personally knew them to be true or untrue is immaterial. His acts were the acts of the insured, and bind her.
It is conceded that the answers to some of the questions as contained in the application are untrue. If Donovan was the agent of the insured, as provided for, there is a breach of warranty and this policy is null and void.
Donovan may represent the defendant, but it had the right to limit and fix his position, authority and relations as between the insured and itself. Quinlan v. Providence Washington Insurance Company of Providence, R. I., 133 N. Y. 356, 362, 364, 365.
The trial justice, therefore, erred in his charge to the jury as to the representations made and that they must be known to the insured at the time she made the application to be false before defendant can recover. Under this contract it is immaterial.
These contracts are considered fair and reasonable and are upheld by authority.
For these reasons judgment must be reversed and new trial ordered, with costs to abide the event.
Ehrlich, Ch. J., concurs.
Judgment reversed and new trial ordered, with costs to abide event.
