4 Cal. App. 2d 455 | Cal. Ct. App. | 1935
On January 6, 1930, George P. Irving by his wife, Mabel A. Irving, respondent herein, made
The court found that Rose did see the president of the company, called the error to his attention and was in turn assured by the president, who made a memo of the correct address, that the records of the company would be corrected. This correction, however, was never made. Thereafter a subsequent notice of assessment was mailed to the assured at
• Respondent brought action on the certificate, established the facts summarized and was awarded judgment for the full amount thereof. From that judgment and an order denying a motion for a new trial and an order denying motion to vacate the judgment, appellant presents this appeal.
The basic contention of appellant upon which it denied liability, predicated its defense at the trial and which it now urges on appeal, is that statements and representations made in an application for an insurance policy, even though written by someone other than the applicant, are, when the application is signed by the applicant, warranties upon which the insurer relies. If they are untrue, then such misstatements and misrepresentations are fatal to the policy. (Whitney v. West Coast Life Ins. Co., 177 Cal. 74 [169 Pac. 997].) This rule has been so interpreted, appellant contends, that it applies to those cases in which the insured has been guilty of no active misrepresentations or mistakes, the misrepresentations or mistakes having been in fact made by the soliciting agent, when upon the delivery of the policy to the insured such misrepresentations or mistakes are patent on its face, since under such circumstances it will be presumed that the insured read the certificate and by his silence approved the actions of the soliciting agent, thereby making the soliciting agent his agent as well as the agent of the
We do not question the soundness of the principle urged by appellant, but it is apparent from a cursory reading of the facts that they have no application. No findings were made which charged the insured with actual or implied complicity in the mistake of the soliciting agent, or which in any way impugn the good faith of the insured, and our examination of the record does not disclose sufficient facts, in view of all the testimony, upon which any such findings could properly have been made. In any event, the trial court has settled that question and no showing has been made upon which its findings can be disturbed. Under such circumstances, different principles must be applied which are also enunciated in the Layton case where the court says at pages 205, 206 [55 Cal. App.] : “But it has been held in this state that when the insured in good faith makes truthful answers to the questions contained in the application, but his answers, owing to the fraud, mistake or negligence of the agent filling out the application, are incorrectly transcribed, the company is estopped to assert their-falsity as a defense to the policy. The acts of the agent, whether he is a general agent with power to issue policies, a soliciting agent, or merely a medical examiner for the company, are in this respect the acts of the company, and he cannot be regarded as the agent of the insured, even though it is so stipulated in the application . . . subject to the limitation that there.must be no complicity on the part of the insured, actual or implied. The element of continued good faith enters into such transactions.” To the
In the case of Lyon v. United Moderns, 148 Cal. 470 [83 Pac. 804, 113 Am. St. Rep. 291, 7 Ann. Cas. 672, 4 L. R. A. (N. S.) 247], the court, quoting from Cooley’s Briefs on the Law of Insurance (vol. 3, p. 2594), says as follows: “From an examination of the eases the following propositions may be regarded as established by the weight of authority: Where the insured, in good faith, makes truthful answers to the questions contained in the application, but his answers, owing to the fraud, mistake or negligence of the agent filling out the application, are incorrectly transcribed, the company is estopped to assert their falsity as a defense to the policy. The acts of the agent, whether he is a general agent with power to issue policies, a soliciting agent, or merely medical examiner for the company, are in this" respect the acts of the company, and he cannot be regarded as the agent of the insured, though it is so stipulated in the application or policy. ’ ’
There can be no question that Rose, the soliciting agent, when he obtained the application and wrote in the answers to the questions, was the agent solely of the appellant company. (La Marche v. New York Life Ins. Co., supra, p. 502.) It is undisputed that the name and address portions of the application were unfilled at the time it was signed. It is apparent in the light of the evidence that Rose had been continuously calling at the correct address of the insured; that he felt it was unnecessary to ask the name of the insured or the address, because he knew both, and that he intended to do just as he said he would, fill out afterwards the name and address of the insured. It is also obvious that he inadvertently inserted Long Beach in lieu of Wilmington, possibly because he lived in Long Beach and completed the application when he arrived at his home. There is nothing in the evidence to indicate fraud either on the part of the agent or the insured. It is obvious, on the contrary, that neither Rose nor the insured intended to do anything to deceive the insurer. It is also clear that the mistake which occurred was the company’s mistake because it was made by
It will also be observed that the paragraph of the certificate requiring notice of change of address does not require such notice to be in writing. Notice is required to be given at its home' office in Los Angeles. It is admitted that the insured did not give notice at the home office in Los Angeles. The court found, however, that notice was given to Rose, who in turn notified the president of the company at the president’s home in Long Beach, and that the president stated that he would have the address corrected on the books of the company. In this connection, appellant urges most vigorously that Rose for the purpose of causing the correction in the address was the agent of the insured, and not that of the company, and that even considered as a soliciting agent his duties were circumscribed and that any request made to him and his reply that he would take care of it is not binding -on the company any more than if the insured had sent some third party entirely unconnected with the company. Conceding arguendo that this is true, we fail to see its application. Rose was not the person who waived compliance with the strict provisions of the notice clause. It was the president of the company who made the waiver. We have no difficulty in holding that the insured complied sufficiently with the provisions of the certificate, since the proved facts show that the chief executive of the company received such notice and accepted it. There can be no question as to the right of such an executive to waive the strict provisions of the policy and accept notice in the form in which it was given. (Berliner v. Travelers’ Ins. Co., 121 Cal. 451 [53 Pac. 922]; Farnum v. Phoenix Ins. Co., 83 Cal. 246 [23 Pac. 869, 17 Am. St. Rep. 233]; Mayer v. Mutual Life Ins. Co. of Chicago, 38 Iowa, 304 [18 Am. Rep. 34].)
In our treatment of the appeal, we have assumed that the excerpted portions of the certificate are applicable to the facts, but it has undoubtedly been discerned that this is not a case of change of address at all. There is a real question whether the provisions of the certificate, which appellant invokes and upon which it relies, have any application to the facts. The insured resided at the same place before, at the time and after the application was signed. The insured never changed his address.
Conrey, P. J., and York, J., concurred.