260 A.D. 990 | N.Y. App. Div. | 1940
Judgment of Special Term and judgment of City Court reversed on the facts and a new trial granted in the City Court, with costs to appellant to abide the event. Memorandum: The plaintiff claims that the agent who solicited the policy, delivered the same, and collected the premium, was fully informed as to the condition of health of the insured and that the company waived the provisions of the policy relating to the health of the assured. The underlying reason for the rule that imputes an agent’s knowledge to his principal is that an innocent third party dealing with the agent may properly presume that the agent will perform his duty. If the plaintiff knew or had reason to believe that the agent would conceal, or not report the information which he possessed to the company, then no such knowledge can be imputed to the company. The plaintiff carried the burden of proving waiver and her own good faith was an essential element thereof. Plaintiff testified that the agent after being told of her husband’s poor state of health said: “ If we take a policy on my [plaintiff’s] life it would look better for the both of us.” In answering the questions on the proof of death, plaintiff withheld the true information as to the length of the time of her husband’s illness and that he had received hospital treatment for the same in 1937. We think that a finding by the jury that the plaintiff did not know or have reason to know that the agent would conceal or not report his knowledge of the insured’s health to his principal is against the weight of evidence. We believe also that the policy issued to the plaintiff and delivered prior to the delivery of the policy of the insured and containing the same provisions as to limitation of the agent’s authority was competent upon the issue as to whether the plaintiff had knowledge