91 Ky. 208 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OF THE COURT.
For the recited consideration of a written application, and statements therein, referred to and made part of the contract, payment of one hundred and eighty-eight dollars and nine cents made, and the same sum agreed to be paid annually for fifteen years, appellee issued, April 18, 1882, a policy by which it agreed to insure the life of William Wright in the sum of three thousand dollars.
It appears that Rebecca Wright, his mother, was ■ originally intended to be named as beneficiary of the policy, though issued to him; and to her, in Cyn
He having died in November, 1882, from injuries received while employed in the yard of a railroad company at Lexington, appellant, administrator of his estate, brought this action, to recover amount of the policy. But judgment is resisted upon the grounds that the assured violated a clause of the policy forbidding his engaging in switching, coupling or uncoupling railway cars, and of misrepresentation made in respect to his occupation, which was stated in the application to have been that of laborer.
Upon trial of the action there was evidence showing that when Gillmore & Rankin read to Rebecca Wright the question of Wm. Wright’s occupation, she stated to them he was an employe of a railroad company at Lexington, and working in its yards;
The purpose of requiring answers to the numerous and comprehensive questions contained in an application for a policy of life insurance is to enable the company to avoid taking risks it would not do with full knowledge of the actual situation and condition of the applicant; and in order to prevent possible injury to the company by false answers to the questions, the application is made part of the contract, and right reserved to refuse payment of the policy in case any material statement made by the assured turns out to be false. But one party to a contract, however explicit its stipulations and conditions, can not, after receiving full benefit of all he was entitled to from compliance in good faith by the other, avoid
Although the questions were not put to nor answered by ¥m. Wright, but by his mother acting for him, yet, if the agents were informed by her of his actual occupation, the company is as much bound thereby, if at all, as if he had given the information; and while it is doubtless true that the company would not have issued the policy if the answer of Rebecca Wright in respect ’to his, occupation had appeared in the application, as some of the witnesses testified on the trial she made it, it is equally manifest the policy would not have been accepted, nor any premiums paid, if either Rebecca Wright, who paid, or Wm. Wright, for whom it was paid, had believed a forfeiture would or could be legally claimed upon the grounds now relied on as defense to the action. As then, if what is stated in avoidance of the forfeiture be true, a condition exists which neither the insured, nor, as must be assumed, the insurer anticipated, or intentionally caused, one or the other party must suffer on account of the misconduct of Gfillmore & Rankin. Whether it shall be the personal representative of the insured or the insurer depends upon the extent to which the latter can be fairly and legally made to answer for the acts of its soliciting agents, there being no question of the correctness of the principle contained in the instruction of the lower court when applied to either the company or its general agents.
In Mutual Benefit Insurance Company v. Daviess’ Ex’r, 87 Ky., 541, it was held that the doctrine of
The modern, and we think correct, doctrine is to regard the description of the risk, though nominally proceeding from the insured, as the act of the company, when its agents, by a false or erroneous statement of what the application should contain, or taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. (Rowley v. Empire Insurance Co., 36 N. Y., 550; May on Insurance, 165; Hartford Insurance Co. v. Haas, 87 Ky., 533.)
The rule by which to determine -the responsibility of an insurance company for acts of its agents as laid down in Insurance Co. v. Wilkinson, 13 Wall., 222, upon authority of cases cited and approved by this court in Phœnix Ins. Co. v. Spiers & Thomas, 87 Ky., 285, and other cases, is as follows: “The powers of the agent are prima facie coextensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. An insurance company establishing a local agency must be held responsible to the parties with whom they transact business for the acts and declarations of the agent within the scope of his employment as if they proceeded from the principal.”
As by the issue of fact presented in the instruction the verdict of the jury was made to depend upon the sufficiency of the plea in avoidance of forfeiture of the
YYherefore, the judgment is reversed, and cause remanded- for a new trial consistent with this opinion.