Ward v. Metropolitan Life Insurance
33 A. 902
Conn.
1895
Check Treatment
Baldwin, J.

There clearly was evidence upon which the verdict can be supported, under the charge of the court. The Act of 1893 (Chap. LI., p. 228) was designed to afford a remedy only when none could be had by appeal. Johnson v. Norton, 64 Conn., 134; Bissell v. Dickerson, ibid., 61, 71. The court feels bound to express its strong disapproval of a resort to motions of this character, involving large expense to the State from the cost of printing the entire evidence, when the real grievance arises from the instructions which the jury received from the court. 2sTo verdict can be treated, under this statute, as against the evidence in the cause, which was warranted, on the evidence, by the terms of the charge, however erroneous such charge may have been.

Of the errors assigned upon the appeal, it is necessary to notice but three.

1. The policy in suit provides that inasmuch as only the officers of the defendant at the home office have authority to determine whether a policy shall issue in any case, and as they act on the written statements made in the application, it is expressly agreed that no information, statements or rep*238resentations made or given by or to its soliciting agents, or any other persons, shall in any manner affect its rights, unless put in writing and incorporated in the application; and also that no agent has power to modify the contract, waive any forfeiture, or bind the company by receiving any representation or information, but that such power can be exercised only by the president or secretary of the company, and will not be delegated. It is further stated that each of the statements in the application, on which the policy was issued, is warranted to be true, and that if any of them is untrue, the policy shall be absolutely null and void.

It was not disputed (except in the pleadings) that certain statements in this application, of a material character, were untrue; but the plaintiff was allowed to introduce parol evidence of statements and representations made to and by the general and local agents of the defendant, for the purpose of showing that this breach of warranty had been waived, or that the company was estopped from setting it up as a defense. The objection to the reception of this evidence was properly overruled. It tended, so far as it went, to support the reply, which the defendant had traversed. The court could not know that it might not be followed up by further evidence that the information received by the agents had been communicated to the company, and was known to the president or secretary at the home office, when the policy was issued, in which case the plaintiff would clearly have shown himself entitled to a verdict.

No direct evidence of this nature was afterwards produced, but the jury were instructed in substance that its place might be supplied by a presumption that an agent receiving, as such, information which it is his duty to communicate to his principal, will so communicate it; that a presumption of honest conduct always exists, where no fraud or collusion is shown; and that fraud in any case is not to be presumed.

The term “presumption” is used to signify that which may be assumed without proof, or taken for granted. Morford v. Peck, 46 Conn., 380, 385. It is asserted as a self evident result of human reason and experience. In its origin, *239every presumption is one of fact, and not of law. It may, in course of time, become a presumption of law, and even an indisputable one. Its truth may be so universally accepted as to elevate it to the position of a maxim of jurisprudence. Its convenience, as a rule of decision, may be so generally recognized as to place it in the rank of legal fictions. But so long as it retains its original character as a presumption of fact, it has simply the force of an argument. 1 Greenleaf’s Ev., § 44; Stephen’s Digest of the Law of Evidence, 246.

The presumption that public officers in the discharge of their duties have observed all proper formalities, may be now considered as one of law. Booth v. Booth, 7 Conn., 350, 367; Coggill v. Botsford, 29 id., 439, 447. But this cannot be said of the presumption that the duties of a private agency have been faithfully performed. The Superior Court properly admitted evidence of the knowledge of the defendant’s agents at New Haven of the breach of warranty, but it erred in instructing the jury that, in determining its effect upon the question of estoppel, they might proceed, in the absence of countervailing proof, on the presumption that it was duly communicated to the home office. The plaintiff relies upon McGurk v. Metropolitan Life Ins. Co., 56 Conn., 528, 538; but the objection there overruled was taken to the admission of the evidence, not to the charge to the jury. Under the instructions given in the case at bar, the jury were not told simply that they would be warranted in taking into consideration the presumption in question, but it was stated to them as an authoritative and binding rule, the only exceptions to which arose from fraud or collusion. It is true that their attention was also directed to the testimony of the defendant’s officers that they were in fact never informed of the statements made to its agents; but this still left the burden of proof, as to the point of notice, on the wrong party. The difference between a presumption of fact and one of law, as these terms are commonly used, is that the former may be, the latter must be, regarded by the trier. The charge in the present case was calculated to make the jury suppose that they were bound in law to give some weight to each of the *240presumptions to which reference was made. It also built a presumption of waiver upon a presumption of notice. This put it on too insecure a foundation. The defendant could not be estopped from setting up a breach of warranty, unless it had waived its right to take advantage of it. Insurance Co. v. Wolff, 95 U. S., 326, 333. “ A waiver is an intentional relinquishment of a known right.” A presumption of the relinquishment of a known right cannot be rested on a presumption that such right was known. First National Bank v. Hartford Life & Annuity Ins. Co., 45 Conn., 25, 44; U. S. v. Ross, 92 U. S., 281, 283; Manning v. Ins. Co., 100 id., 693, 699.

2. The Superior Court also erred in instructing the jury that if the district superintendent of the company at New Haven forwarded the application in question to the home office in good faith, with a recommendation of the risk, when he knew that material statements in the application were false, and after the policy was issued continued to collect the accrued premiums upon it and remit them to the defendant, then his knowledge was its knowledge, and its receipt and retention of the premiums estopped it from setting up the breach of warranty. There are expressions in the case of McGurk v. Metropolitan Life Insurance Co., 56 Conn., 528, 539, which lend some countenance to the plaintiff’s claims in this respect, but they were used with reference to a totally different question, — that of the admissibility of evidence of the knowledge of the agent; nor did the policy there in suit contain any provisions similar to those in that of the plaintiff, as to oral statements which were not incorporated in the application.

The rule that the knowledge of an agent is the knowledge of the principal, if the agent acquired it while acting for the principal, in the course of the transaction which is in question, rests on the ground that the agent stands, for that transaction, in the place of the principal, and in effect is the principal, so far as concerns the rights of the other party. Farmers' & Citizens' Bank v. Payne, 25 Conn., 444, 449, 450. It is unimportant whether he in fact communicated his-*241knowledge to the principal, because even if he did not, it would be unfair to allow such a breach of duty on the agent’s part to put the other party in a worse position. Smith v. Board of Water Commissioners, 38 Conn., 208, 218. There is no reason why a corporation which necessarily contracts through agents, but may have agents of superior and agents of inferior authority, should not stipulate in any contracts executed in its behalf that their provisions can be varied by no notice or representations, not brought to the actual knowledge of one of its principal officers, nor by any waiver not authorized by them. Ryan v. World Life Ins. Co., 41 Conn., 168, 175; Insurance Co. v. Wolff, 95 U. S., 326, 332. Provisions of that character were inserted in the policy in suit, and in the application upon which it was based. They were designed to exclude the operation of the rule that notice to the agent who negotiates a contract is notice to the principal; and such was their necessary effect.

3. The Superior Court was asked to direct the jury to return a verdict for the defendant. A plain breach of warranty had been proved. The plaintiff introduced evidence that it was known to and waived by the local agent and district superintendent of the company, but none that it was ever known at its home office. The local agent and the person who was president of the company at the date of the application were dead, but the defendant produced the district superintendent, the vice-president, the secretary, and the general manager of the company, each of whom testified that he never knew that any of the statements in the application were untrue, until after the death of John Ward. Under these circumstances, no verdict for the plaintiff could be supported, and there was nothing left to submit to the consideration of the jury, upon which their opinion could be of any importance in the determination of the cause. It might, as it has done, defer, but it could not avoid the inevitable result. It therefore became the duty of the court, to the end that right and justice might be administered without denial or delay, (Const., Art. I. § 12,) to comply with the defendant’s request and direct a verdict in its favor. People's Savings *242Bank v. Norwalk, 56 Conn., 547, 556; Talcott v. Meigs, 64 id., 55, 58.

The motion for a new trial is denied; but upon the appeal there is error, and a new trial is ordered.

In this opinion the other judges concurred.