143 N.Y.S. 1063 | N.Y. App. Div. | 1913
The plaintiff brings this action to recover the sum of $500 upon a policy of insurance issued by the defendant upon the life of Thomas P. Gorman, payable to the plaintiff. The policy
The answer admits the incorporation of the defendant, and the refusal to pay the sum of $500, and denies knowledge or information sufficient to form a belief as to the remaining allegations of the complaint, with some immaterial exceptions so far as any question here involved is concerned. The defendant sets up as a defense that the policy in suit was issued upon the basis of the answers, statements and representations contained in the printed and written application for said policy, signed by said Mary Gorman and Thomas P. Gorman, which application was a part of said contract of insurance, and all of which statements, answers and representations therein referred to were made to induce the defendant to issue the said policy, and as a consideration therefor, and said policy was issued and accepted upon the declaration and agreement that the statements, answers and representations in said application, and those made to the medical examiner, were correct and wholly true, and that they should form the basis of the contract of insurance, if one be issued. It then alleges that the contract never became operative because of the falsity of the statements
Upon the trial the plaintiff proved the formal facts in relation to the policy and death of the insured, and rested. It was stipu - lated that the policy of insurance was issued, and that such policy might be admitted in evidence; that the said Thomas P. Gorman, the insured mentioned in said application and policy, was an inmate of, and under treatment for fits of epilepsy in, an institution under the supervision of the State of New York known as the Craig Colony, from the 4th day of October, 1909, to the 7th.of October, 1909; that the physician’s certificate necessary to obtain admission to said institution was signed by Dr. M. D. Stevenson, of Albany, N. Y.; that thereafter and upon a verified petition of the plaintiff herein, dated July 18, 1911, the said Thomas P. Gorman was duly adjudged a lunatic, and. was confined in a State institution up to the time of his death.
The stipulated facts practically established the defendant’s defense, but upon a motion to dismiss the complaint the learned trial court permitted the plaintiff to reopen the case for the purpose of establishing that the soliciting agents of the defendant company knew of the facts as they then appeared in the case before the policy was issued. There was no amendment of the pleadings; the complaint alleged a full compliance with the terms and conditions of the policy, the policy being made a part of the complaint. The policy, with the application constituting a part of the same, contains statements purporting to have been made by the insured to the medical examiner which are directly contradictory of the stipulation above referred to, and which, if disclosed to the defendant’s officers, would undoubtedly have prevented the issuing and delivery of the policy, and just how the plaintiff, under her pleadings, could be heard to say that the policy under which she claimed was not the real contract entered into by the insured we are unable to understand. No fraud or bad faith is alleged in the complaint. It sets forth a valid policy upon its face, based upon statements alleged to have been made by the insured to the medical examiner, and which are set forth in the policy under which the claim is made, and without which the policy would not have been issued. Conceding. upon the trial that these
We are of the opinion that the court erred in refusing to charge as requested, that “if the jury believe the statements of the plaintiff and her witnesses that the insured or the plaintiff disclosed to the soliciting agent or soliciting agents of the defendant the true state of his health and physical condition before going before the medical examiner, or of his having been an inmate of Craig Colony for epilepsy, such evidence is not binding on the defendant, and any such notice or information as to the health or physical condition of the insured given to such soliciting agents is not knowledge chargeable to the defendant.” There can be no doubt that under a proper pleading it might be shown that the medical examiner had failed to report correctly the answers given him upon the examination, and that such answers were in fact truly made, and such a mistake or fraud would be chargeable to the defendant, but that the knowledge of mere soliciting agents, who have nothing to do with the issuing of the policy or with the inquiry into the physical condition of the insured, is notice to the company is'not supported by reason or authority. Notice to an agent is not notice to the principal unless the agent’s knowledge is acquired in connection with his acts as agent, and it clearly appears in this case that the soliciting agents were not called upon to know anything of the physical condition of the applicant, all inquiries in this regard being made by the medical examiner. This is clearly the doctrine of the court in Butler v. Michigan Mutual Life Insurance Co. (184 N. Y. 337), and the defendant was entitled to have the law stated to the jury, though the error of admitting the testimony could not have been cured by the charge if made as requested. The refusal of the court merely emphasizes the original error.
It is clear that Thomas P. Gorman was not a legitimate risk at any time involved in this transaction; the contract could not have been consummated without operating as a fraud upon
The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.