48 N.Y.S. 199 | N.Y. App. Div. | 1897
The claim upon the part of the plaintiff, that the defendant held the burden of proof, and was bound to establish affirmatively that there was a breach of warranty which avoided the policy, is probably correct. (Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505; Dougherty v. Metropolitan Life Ins. Co., 3 App. Div. 313.) The point, however, is not now available to the plaintiff, as no exception was taken to the ruling, and in pursuance of a suggestion by the court the plaintiff assumed the burden of establishing that there had been no breach of warranty, and must now stand or fall upon the case as made or attempted to be made. At the close of plaintiff’s proof, the court dismissed the complaint. The ground of dismissal was that there had been a breach of warranty of the conditions of the policy in that the insured had made false answers to questions propounded to him in thé application. These claimed misrepresentations consisted in a statement by the insured that he had had no disease, and had never been attended by a physician; that at the time of making the application he was in sound health; that neither parents, brothers or sisters had ever had consumption; to each of which questions the insured gave answer in the negative, as appears from the application made for the insurance.
It appeared from the proofs of death that one brother and a sister had, prior to the application for insurance, died of consumption. There was no attempt made upon the part of the plaintiff to show that such statement contained in the proofs of death was the result of any inadvertence or mistake or that the statements contained therein were not true. The attempt made upon the trial, by the plaintiff, was to show that in fact the insured had made to the agent of the insurance company correct answers to the questions propounded to him, and that he then informed1 the agent that his brother and sister had died of consumption, and that the agent put down incorrect answers.
“ Declaration and Warranty by the Insured.—■ It is agreed and warranted that this application has been made, prepared and written by the applicant, or by his own proper agent, and that the company is not to be taken to be responsible for its preparation, or for anything contained therein or omitted therefrom. And the undersigned hereby declares and warrants that the representation and answers made above and on the other side of this sheet are strictly correct and wholly true; that they shall form the basis and become part of the contract of insurance (if one be issued); that any untrue answers will render the policy null and void. * * * ”
The application also contained the following : “ Application to the Metropolitan Life Insurance Co., F. J. Perkins, Agent, at Poughkeepsie, under E. F. Meyer, ass’t supt.”
The application also provided for the agent’s certificate that he had personally seen and examined the person, and that each question was answered as recorded. The proof showed that Perkins took the application for insurance; that he was then acting for the company; that he produced the application and wrote down the answers; that the paper was not read or its contents stated after it was filled up ; that the insured signed it and Perkins took it away with him. Unless the agent taking the application for the insurance is to be regarded as the agent of the insured the latter cannot be charged with responsibility for the omission of the agent to give the answer made by the insured to the question, whether the answer was mistakenly made incorrect or was a willful falsification by the agent. (Peters v. United States Industrial Ins. Co., 10 App. Div. 533.)
There is, however, authority opposed to this view, where the law laid down seems to be that if the stipulation be broad enough to constitute the person writing the application the agent of the insured, he will be bound thereby in accordance with its terms. (Bernard v. United Life Ins. Assn., 14 App. Div. 142, where the question is discussed and the authorities collected.) We do not now commit ourselves to-the doctrine of that case. Assuming, however, it to be a correct exposition of the law, it is not controlling of the question now before us. Looking at the present contract, we see that it is different from the one considered in the Bernard case. There the language of the contract was “ that the person soliciting or taking this application, and also the medical examiner, shall be the agents of the applicant as to all statements and answers in this application.”
In the case at bar there is nothing in the warranty which shows any intent to constitute an agent of the company as the agent of the insured. Its language is that the application “ has been made, prepared and written by the applicant, or by his own proper agent.” This language excludes the idea of an employment of the company’s-agent. It speaks of the party’s agent; an act of himself or his agent. And where it appears that, in fact, the agent of the company wrote the application, I am of the opinion that this operated as a waiver of this clause and worked an estoppel upon the company from denying that the whole of the application was its act. In the Bernard case the language does not admit of this construction. There it speaks of the person and makes him the agent, no matter who it is. Here the stipulation is that the act shall be done by the
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concurred, except Goodrich, P. J., who concurred in the result.
Judgment reversed and new trial granted, costs to abide the event.