31 Iowa 216 | Iowa | 1871
The court refused this instruction, and gave the following, to wit: '
“ An untrue or fraudulent statement, or denial made by the applicant of a fact material to the risk, to induce the issuance of a policy, will prevent the policy from taking effect as a valid contract, unless the insurer has in some way waived or estopped himself from relying upon such misstatement to avoid the policy.”
“ If you find that James A. Miller made an untrue or fraudulent statement of a fact material to the risk, in the application for the policy, then you should find for the defendant, unless you further find that the defendant was informed of and knew the truth in regard to such fact, and after knowing such fact fully, received the application, the premium money and notes, and issued the policy; in which case you should find for the plaintiff.”
“ A full knowledge of the truth of .the alleged misstatements of Miller in the application, communicated to Thornton and Case, or either, was a communication to the company.”
The refusing to give the one, and the giving of the other instructions,’ the defendant assigns as error.
This assignment presents for our consideration this interesting question: “ Is an insurance company, transacting business through an agent having authority to solicit, make out and forward applications for insurance, to deliver over policies when returned, and to collect and transmit premiums, affected by the knowledge acquired by such agent when engaged in procuring an application, and bound by his acts at such time done with respect thereto ? ” Upon this point there is much conflict in the decisions. In the case of Vase v. Eagle Life and Health Insurance Co., 6 Cush. (Mass.) 42, it was held that, where an agent of a life insurance company, who was not authorized to agree for insurance, knew of the falsity of a material representation by an applicant, such knowledge would not prevent the company from insisting upon a discharge in consequence of the false representation.
The same doctrine was recognized in the case of Smith v. Insurance Co., 24 Penn. St. 320. In Mitchell et al. v.
And the case of Wilson v. Conway Fire Insurance Co. does not stop with a recognition of the foregoing doctrines, but holds that an agent of an insurance company, empowered merely to receive written applications for insurance, to transmit them to the company, and, if they decide to take the risk, to receive the policy executed by them, and to issue it to the applicant upon receipt from him of the premium, is not the agent of the company for the making of applications; and if employed by the applicant, or permitted to act for him in drawing up the application, is his agent, for whose mistakes of fact committed in the statements or answers to interrogations in the application he is responsible. To the same purport see Lowell v. Middlesex Mutual Fire Insurance Co., 8 Cush. 127; Forbes v. Agawam Insurance Co., 9 id. 470; Lee v. Howard Insurance Co., 3 Gray, 583.
In support of the converse doctrine see Rowley v. Empire Insurance Company, 36 N. Y. 550. In this case the plaintiff stated to the agent, verbally, the facts necessary to meet the requirements of the rules of the company, and, among other things, informed him that the premises were incumbered by mortgage. An application was signed in blank by plaintiff, and given to the agent, he promising to insert, over the signature thus obtained, the particulars thus furnished him, as a basis of the insurance, on his return to his residence. In filling up the application the agent inserted what was not the fact, and in violation of his instructions, that there was no incumbrance on the premises. It was held that he was the agent of the company in filling up the application, and that the company was bound by his acts.
In the ease of Septon v. Montgomery Co. Mutual Insurance Co., 9 Barb. 191, it was held that, when a policy- of insurance requires that in case of any prior-existing insurance upon the same property notice thereof shall be given to the company, notice to an agent authorized to make surveys and receive applications for insurance, and to receive the moneys paid by the assured, is. sufficient, and that such notice need not be in writing. In the case of McEwen v. The Montgomery Co. Mutual Insurance Co., 5 Hill, 101, it was held that notice to the traveling agent of the company, whose business was to solicit insurances, make surveys arid receive applications, while actually engaged in preparing an application for a policy, was binding upon the company, although the notice never reached the company; and that notice to an agent, Relating to business which he is authorized to transact, and while actually engaged in transacting it, will, in general, operate as notice to the principal. See, also, Bowley v. Empire Insurance Co., 3 Keyes, 559, and Anson v. The Winneshiek Insurance Co., 23 Iowa, 84.
To this latter view the judicial mind seems rapidly tending, and it is certainly more in accord with the enlightened and progressive spirit of the age.' These companies select their own agerits, require them to enter into bonds for the faithful discharge of their duties and send them forth provided with blanks and clothed with all the insignia of authority. If their ignorance or their cupidity leads them to recommend improper risks, it is more in consonance with reason that the loss should be borne by the company than that the assured should be made the victim of the incompetency or the avarice of the agents. More especially is this true in view of the fact that the company has the means
The business of insurance is rapidly increasing in magnitude and importance, and it is as essential to the companies themselves as to the assured that the rules of law declared applicable to them should be based upon just and equitable principles, and administered in a manner in harmony with the doctrines of an enlightened jurisprudence.
It is quite time that the technical constructions which have pertained with reference to contracts of this kind, blocking the pathway to justice, and leading to decisions opposed to the general sense of mankind, should be abandoned, and that these corporations, grown opulent from the scanty savings of the indigent, should be held to the same measure of responsibility as is exacted of individuals.
It follows that, in our opinion, the court did not err in instructing the jury that the defendant was bound by notice communicated to its agents. '
A warranty differs from a representation in two essential aspects. First, a warranty constitutes a part of the contract, and it is necessary that it should be exactly and literally complied with; but a representation is collateral to the contract, and it is sufficient if it be equitable and
In the case of Daniels v. Hudson River Fire Ins. Co., Shaw, Oh. J., having alluded to the fact that a warranty, however immaterial, if untrue, avoids the policy, uses this language: “ Hence it is, we suppose, that the leaning of all courts is, to hold such a stipulation to be a representation rather than a warranty, in all cases where there is any room for construction, because such construction will, in general, best carry into effect the real intent and purpose which the parties have in view in making their contract.” And the learned chief justice, in the same case,, further
In tbe case of Campbell v. New England Mutual Life Ins. Co., tbe defendant insisted, as in tbe present case, that certain statements were to be regarded as warranties, and tbe point decided in the case is so pertinent to tbe present inquiry, and tbe reasoning is so clear and forcible, that we feel justified in quoting further from it. The court said: “ In every case cited in support of tbe defendant’s position, there was an express reference in tbe policy, which made tbe application a part of tbe contract. Tbe one most relied on, and claimed to be especially applicable to tbe facts of tbe present case, is that of Miles v. Connecticut Ins. Co., 3 Gray, 580. In that ease it was declared in tbe policy itself to be “ expressly understood and agreed to be tbe true intent and meaning hereof, that if tbe'proposal, answer and declaration made by tbe assured, and upon tbe faith of which this agreement is made, shall be found, in any respect, untrue, then and in sucb case this policy sba.ll be null and void.” In that proposal tbe assured declare (among other things) that tbe answers and statements therein made are correct and true, and “ agree that tbe answers given to tbe following questions, and tbe accompanying statements, and this declaration, shall be tbe basis, and form part of tbe contract or policy between them and tbe said company.” Two marked features in that case distinguish it from tbe present. First, tbe clause in tbe policy relates distinctly and exclusively to tbe paper caEed “ the proposal and declaration.” Second, when tbe two papers are thus brought together there is a distinct agreement not only that tbe statements are true and correct, but that they are to form a part of tbe contract. In tbe present case tbe policy contains no reference to any application, nor to any declaration or statement in writing, made or to be made by
In the case at bar the proceedings with reference to the proceedings of the policy comprise five papers. The one designated “A” is headed, “ Particulars required from persons proposing to effect assurance on lives in this company.” That designated “ B ” is headed, “ Questions to be answered by the physician of the party applying for insurance.” That designated “ O ” is headed,' “ Questions to be answered by the friend of the party applying for assurance.” That designated “ D ” is headed, “ Questions to be answered by the agent, if the applicant is not previously known.to him.” And the fifth is designated as follows: “ Declaration to be made and signed by the person propos
It is worthy of note that the deola/ration is referred to by name, and that to none of the other papers, each of which has a specific designation in the proceedings, is any reference made in the policy. In this respect it differs from the case of Miles v. The Connecticut Insurance Co., before alluded-to, in which the policy made direct reference to the proposal, answer and declaration made by the assured, and provided that if they were found in any respect untrue the policy should be null and void.
Applying the principles of the foregoing decisions to the present case it follows that the statements contained in the declaration can alone be regarded as warranties, and that the answers of Miller to the questions propounded to him are mere representations.
If the instruction of the court had reference to the answers to the printed interrogatories, it was proper. If it had reference to the deda/rabion it was not error to the prejudice of appellant. The only alleged misstatement, of which complaint is made, is contained in the answer of Miller to the questions asked him. Hence it becomes quite immaterial what construction is placed upon the statements in the declaration.
As the court did not err in giving the foregoing instruction, it follows that the fourth instruction asked by defend
In the case of Henry Wilkinson v. The Connecticut Mutual Life Ins. Co., decided at the December term, 1870, it was said that, under the terms of the policy in that case, the answers to the questions contained in the application became warranties. That action was against the same, company in which the decision of Miles v. The Connecticut Ins. Co., 3 Gray, 580, was rendered, the policies of which, as we have seen, contain provisions differing widely from those now under consideration.
Upon this branch of the case the. court instructed as follows : “ The opinion of a physician is competent evidence as to the cause of death.” In this action of the court there was no error. There was no testimony contradicting Dr. Staples as to the cause of Miller’s death, but there was some testimony tending to impeach him. However slight the effect of this testimony, and however little the consideration to which it was entitled from the jury, still its weight is to be determined by them.
It is not the province of the court by an instruction to withdraw any proper testimony from the jury. Had this instruction been given, its effect might have been to lead the jury to believe that, as there was no other testimony than that of Dr. Staples as to the cause of death, his opinion must prevail, without regard to the testimony introduced for the purpose of impeachment. The instruction given by the court contained the law as to the competency of the opinion of the doctor, and.very properly left the weight of this opinion to be determined by the jury.
Ve have before seen that the company is affected by the knowledge of its agents acquired when actively engaged in procuring the application for the .policy. The defendant, however, insists, that there is nothing in the record which shows that either Case or Thornton had knowledge that Miller’s habits had been intemperate.
We think that the testimony of Rogers, as set forth in the statement of this case, tends to establish this fact, and that the question of their knowledge was properly submitted to the jury.
That the policy is to be construed strictly against the company see Oatlin v. Springfield Fire Ins. Co., 1 Sumner’s C. C. 434; Wilson v. Conway Fire Ins. Co., 4 R. I. 142.
The instruction given,we think, correctly reflected the law.
The attention of Dr. Staples was directed, upon the cross-examination, to this conversation, and he stated that he thought he did not make the statements above detailed. The deposition was introduced for the purpose of impeachment.
It is claimed that the statements were mere matters of opinion, and that, with respect to them, the witness cannot be impeached.
The witness, as an expert, testified to matters of opinion, and may be impeached by showing that, upon a former occasion, he had expressed a different opinion. Patchin v. Astor Mutual Ins, Co., 13 Kern. 268; Sanderson v. Nashua, 44 N. H. 492.
IX. Some objections were made upon the trial to the introduction of testimony, which may be briefly considered :
The evidence tending to show that Case and Thornton had knowledge that Miller’s previous habits had been intemperate was proper for the reasons already considered. The evidence showing that the certificates of Rogers and Spraguef were incomplete when delivered to the agents, was competent for the same reasons. The receipt for premium signed by Thornton as “ general agent,” constituted a link in the chain of testimony tending to show the extent of Thornton’s authority, and, although alone, it would not establish the extent of his agency, yet, as bearing upon that question, it was properly admitted, and even if erroneously admitted, it was, under the views herein expressed, error without prejudice.
For the error of the court in submitting to the jury the materiality of the misstatements, alleged to exist in the answer of Miller, the judgment is
Reversed.