48 A. 808 | R.I. | 1901
An insurance company may set up false warranties in an application as a defence to a policy, or it may waive them and accept its liability, notwithstanding such warranties. In this case the defendant, ignoring its plea of the general issue, insisted at the trial that the only issue, as a result of extraordinary pleadings, was the question whether the application was signed by the insured after the answers to questions put by the medical examiner were reduced to writing. The jury found that it was not signed after the answers were reduced to writing.
The defendant claimed that everything else was admitted, and even objected to the proof of death of the insured. The insistence upon that one point and going to trial upon it to the exclusion of other testimony, and taking the chances of a verdict, amount to a waiver of other grounds of defence.
There was ample testimony to support the special finding, so that the only question now is its effect. That the finding is upon a remotely material issue is obvious. If the defendant had been compelled to go to trial upon that issue alone, or had demurred to the pleadings and the demurrer had been overruled, as in Weldon v. Wood,
The defendant, having admitted everything inconsistent with the claim that the paper was signed after the answers were written, has thereby admitted that there is no other ground of objection to them.
But, in any view, the answers were given to the only person authorized by the company to receive them, which is equivalent to giving them to the company itself. If they were correctly given, as must be assumed in this case, and mistakenly or willfully written wrong, the application having been accepted in blank, the fault would lie with the defendant and not with the insured. In view of the facts, therefore, that the application was signed without written answers to the medical part; that it was handed to the expressly authorized agent of the company to receive both the answers and the application; that there is nothing to show that the answers as given were false; and that under the terms of the application the examiner was acting for the company and not for the insured in writing down the answers, we see no valid ground of objection by the defendant to the verdict, and no error in the rulings of the court.
Petition for new trial denied.