3 A.2d 365 | Pa. | 1938
At the trial of an action on a policy issued by a mutual fire insurance company, the latter presented two defenses; one — with which we are not here concerned — that plaintiff failed to pay an annual premium assessment, the other that, in the application signed by plaintiff, he had falsely stated there were no encumbrances upon the property. A verdict was rendered in favor of plaintiff, and defendant's motions for a new trial and for judgment n. o. v. were overruled.
The application contained a covenant by plaintiff that all the answers and representations therein were warranted and made a part of the policy to be issued, and if they were in any respect untrue the policy was to be void.
Plaintiff testified that the company's agent had come to his store to negotiate a policy of insurance; that in filling out the application the agent asked him certain questions, but not whether there were encumbrances on *449
the property; that he did not authorize the agent to insert after that question the word "None"; that he had the opportunity before signing the application to read it, but did not do so because he was in a hurry. He admitted that he knew at the time of the execution of the application there were judgments encumbering the premises, some of them in substantial amounts. A witness for plaintiff who was present at the interview said the agent asked no question about encumbrances. On the other hand, the agent testified that he did make this inquiry of plaintiff and the latter answered in the negative. On cross-examination he was asked whether he had taken an application from one Charles Miller and in that instance likewise had failed to ask the applicant as to encumbrances but had nevertheless inserted the word "None." Defendant's objection to this question was overruled. The agent replied that in Miller's case also he had inquired concerning encumbrances. In plaintiff's rebuttal, Miller, over defendant's objection, was allowed to deny this, and to testify that the agent, in taking an application from him, had of his own accord written the word "None" in answer to this question. (Miller admitted, however, that there were in fact no incumbrances upon his property.) Since the purpose of this examination was to show that on another occasion the company's agent had filled in the blank without obtaining the information from the applicant, just as he was charged with having done in the present instance, it is clear that such evidence was improperly admitted. It must have been extremely harmful to defendant to allow the jury to be told that the agent had acted with Miller in the same way as allegedly with plaintiff. That a person has done an act on one occasion is not probative of the contention that he did a similar act upon another occasion: 1 Wigmore on Evidence 230, section 192; Baker v. Irish,
There is, however, a more fundamental question in the case. Even accepting as true plaintiff's version of his interview with the agent, can he recover on this policy? Ordinarily, where representations in the application are warranted by the insured to be correct, the company may resist liability if the warranty is breached. Can the insured avoid this result by proof that the answers as recorded were not his, but were inserted, either fraudulently or negligently, by the company's agent? There is a marked difference of opinion regarding this question in the courts of various jurisdictions, and in our own State it may perhaps be said that the authorities do not permit of a categorical answer.
In Eilenberger v. Protective Mutual Fire Insurance Co.,
Again, in Smith v. Farmers' Mechanics' Mutual FireInsurance Co.,
In Susquehanna Mutual Fire Insurance Co. v. Cusick,
In Kister v. Lebanon Mutual Insurance Co.,
In Dowling v. Merchants Insurance Co.,
In Suravitz v. Prudential Insurance Co.,
In Carrozza v. National Life Insurance Co.,
In Hoffman v. Mutual Fire Insurance Co. of Reading,
On the other hand, as against this formidable line of authorities, there are to be found, especially among the more recent cases, decisions holding it to be the duty of the insured to read the application before signing it, and, if he fails to do so, and the answers are warranted to be true, he is barred from attempting to prove that his replies to the questions were correct but that the agent wrote them incorrectly in the application.
In Rinker v. Ætna Life Insurance Co.,
In Koppleman v. Commercial Casualty Insurance Co.,
In Applebaum v. Empire State Life Assurance Society,
Finally, in Boyle v. Eureka-Maryland Assurance Corporation,
From this detailed review it appears that, according to earlier cases, the insured is not bound by his warranty where he makes true answers to questions and they are falsely written down by the company's agent, but that this viewpoint has been modified by other and later authorities, which hold the applicant, even under such circumstances, to the duty of ascertaining the contents of the application before signing it, unless, perhaps, he is illiterate, or is in some way tricked into signing. It is unnecessary to pursue this subject further, however, because, in our opinion, plaintiff cannot find support for his position in the present case in any of the decisions cited. In none of them, even those preceding the Applebaum case, was it held that an applicant who *456 could have read the application but failed to do so was absolved from obligation in regard to the statements, representations and covenants contained in the applicationother than the answers actually made by him to the company'sagent and by the latter falsely recorded. On the contrary, in the Rinker and Koppleman cases it was expressly decided that whatever protection the applicant might be entitled to with respect to answers orally supplied by him to the agent, he was bound by the other portions of the application. The reason for such a distinction is obvious. Where the insured gives answers or makes statements to the agent to be inserted in the application there may be justification for his contention that as to such answers and statements he has the right to take for granted they will be correctly written, and that he need not, therefore, assure himself concerning them by actual inspection of the paper. But as to all other statements, answers or provisions in the application, whether originally printed therein or inserted in writing by the agent prior to the signing by the applicant, without the question or subject being called to the attention of the applicant at all, the latter has no right to assume anything whatever as to the contents of the paper in regard to such matters, and as to them is under the same obligation to read the application before signing as is everyone else who affixes his signature to a document involving legal obligations.
In the present case, according to plaintiff's own version, the agent did not ask him any question concerning the encumbrances upon the property. Plaintiff, therefore, had no reason to assume that there was or was not contained in the application a representation or statement in regard to encumbrances, or, if any, what that statement or representation was. Nor does plaintiff, an educated, competent businessman, pretend he was unable to read the application, or that he was induced not to read it by the agent, or that his failure to inspect it was caused by any fraud, trick or artifice upon the part *457 of the agent; on the contrary, he frankly admits that he had every opportunity to read before signing but forbore to do so only because he was in a hurry at the time.
The judgment is reversed and is here entered for defendant.