79 F. 245 | 9th Cir. | 1897
The defendant in error was the plaintiff in an action which was brought against the Phoenix Insurance Company to recover, upon a policy of fire insurance, the loss and damage by fire to the property of Peter Thompson. On October 23, 1893, Peter Thompson made a written application for insurance to the amount of $3,500, upon Ms barn, hay, grain header, binder, and other farming implements, with the loss, if any, payable to C. Warttemberg, mortgagee. One of the defenses made by the insurance company to the action was that the insured, in Ms written application, had falsely warranted that the property upon which the insurance was sought was not inctimbered. The insurance was obtained through one R. D. McConnell an agent of the insurance company residing at Moscow, Idaho, and, when the policy was delivered to the insured, it bore the indorsement, “McConnell & Cobbs, Agents.” The application contained the following:
“It is expressly understood and agreed that tbe valuation of all the property herein described is made by the applicant, and, if this blank be filled out by the agent, it is done at dictation of applicant, and every statement herein contained is to be deemed his own. This company will be bound by no statement made to or by the agent, unless embodied in writing herein.”
The policy contained also the following:
“This insurance is based upon the representaüon contained in the assured’s application of even number herewith, on file in the company’s office in San Francisco, each and every statement of which is hereby specifically made and warranted and a part hereof; and it is agreed that, if any false statements are made in said application, this policy shall he void.”
And the following:
“No agent or employe of this company, or any other person or persons, have power or authority to waive or alter any of tlio terms or conditions of this policy, except only the general agent at San Francisco. Any waiver or alteration by them must be in writing.”
At the trial, the plaintiff, in answer to the question, “What, if any, answer was made to this question in the application, ‘Is the personal property incumbered? If so, in what manner and what amount?’ ” testified as follows:
“A. I told him it was mortgaged to John P. Volmer, First National Bank of Lewiston, for §1,000. Q. State the whole conversation at that time. A. And he says, ‘Are you going to pay it?’ I told him I was going to pay it off right away, and he said that did not make any material difference if I was going to pay it off right away, and he would write the word, ‘No.’ ”
The plaintiff in error cites the case of Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, and urges that, under its authority, we are compelled to reverse the judgment of the trial court. In that case the applicant for life insurance made his application in St. Louis, to an agent of a New York insurance company. He made answers i o the questions propounded to Mm by the agent, which, if correctly written down, would have made a material difference in the nature of the risk. The agent, without his knowledge, wrote down false answers, concealing the truth. The applicant signed the application without reading it, and the agent transmitted it to the company. Thereupon a policy was issued 'which contained the express condition that; 1he answers in the application were a part of the policy, and that no statement made 1o the agent not contained in the application should be binding on the company. A copy of the answers, with these conditions conspicuously printed upon it, accompanied the policy. It was held that the policy was void. Mr. Justice Meld, in delivering the opinion of the court, said:
“It is conceded that the statements and representations contained in the answers, as written, oí the assured, to the questions propounded to him in his application, respecting his past and present health, were material to the risk to be assumed by the company, and that the insurance was made upon the*248 face of them, and upon his agreement accompanying them that, if they were false in any respect, the policy to be issued upon them should be void. It is sought to meet and overcome the force of this conceded fact by proof that he never made the statements and representations to which Ms name is signed; that he truthfully answered those questions; that false answers written by an agent of the company were inserted in place of those actually given, and. were forwarded with the application to the home office. * * * It was his duty to read the application he signed. He knew that upon it the policy would be issued, if issued at all. It would introduce great uncertainty in all business transactions if a party making written proposals for a contract, with representations to induce its execution, should be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made, or business fairly conducted, if such a rule should prevail; and there is no reason why it should be applied merely to contracts of insurance. There is nothing in their nature which distinguishes them in this particular from others.”
The court proceeded to distinguish the case from Insurance Co. v. Wilkinson, 13 Wall. 222, and from Insurance Co. v. Mahone, 21 Wall. 152, and said:
“In neither of these cases was any limitation upon the power of the agent brought to the notice of the assured. * * * Here the power of the agent was limited, and notice of such limitation given by being embodied in the application which the assured was required to make and sign, and which, as we have stated, he must be presumed to have, read. He is therefore bound by its statements.”
It is contended by the defendant in érror that the doctrine of the Fletcher Case has been modified by subsequent decisions of the supreme court, and we are referred to Insurance Co. v. Chamberlain, 132 U. S. 304, 10 Sup. Ct. 87, in support of that proposition. That was a case in its facts and principles essentially identical with the case now before the court. The applicant for insurance stated in his application, in answer to the question whether he had other insurance, that he had certain certificates of membership in co-operative societies. The agent informed him that he did not consider such certificates insurance, and gave his reasons for so stating, and wrote the answer “No” in the application. But the decision of the court involved no modification of the doctrine of the Fletcher Case. It was based expressly upon the statute of Iowa, in which state the contract of insurance had been made, providing that “any person who shall hereafter solicit insurance, or procure applications therefor, shall be held to he the soliciting agent of the insurance company or association issuing the policy on such application, or on a renewal thereof, anything in the application or policy to the contrary notwithstanding.” The court held that an agent procuring an application for life insurance in that state became, hy force of the statute, the agent of the company, and that if he filled up the application, or made representations, or gave advice as to the character of the answers to be given by the applicant, his acts in these respects were the acts of the insurer. There is no intimation in the opinion of what would have been the ruling of the court in the absence of a statute. In Idaho, unfortunately, there is no statute similar to that of Iowa. We find no other decision of the supreme court subsequent to the Fletcher Case which in any way modifies that case. But we are not
The judgment will be affirmed, with costs to the defendant in error.