Hingston v. Ætna Insurance , 42 Iowa 46 ( 1875 )

Béck, J.

The application upon which the policy was issued, and was made a part of the policy with warranty, represented that the property was free of incumbrances. The evidence shows that, at the time, it was covered by a deed of trust. Evidence was introduced by plaintiff tending to show that he signed the application in blank, and that it was filled up by the agent of the defendant without plaintiff’s knowledge of what was written therein, and without his having' made the representations in regard to incumbrances found in the application.

l. insurance: agentFmis-ul agent. y I. Upon this branch of the ease the court instructed the jury in the following language: “ If you find that the plain-

tiff was asked to and did sign the application in blank, and the agent of the defendant filled it up. on his own motion without knowledge of plaintiff as to what the answers were; or if you should find that the plaintiff made true and correct answers, but the agent, in writing the answers, for any reason, wrote incorrect 'answers, the plaintiff will not be responsible for the acts, mistakes or wrongs of such agent.”

The giving of this instruction, and the refusal to give others asked by defendant, presenting a different view, is made the foundation of the only objection to the judgment urged in this court.

The instruction quoted accords with the doctrine held by this court. Bartholomew v. Merchants' Ins. Co., 25 Iowa, 508; Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176. The agent of the defendant, under the peculiar facts of the case, cannot be regarded as the agent of plaintiff in filling up the-application; in that matter he acted for defendant. Rowley v. Empire Ins. Co., 36 N. Y., 550; Commercial Ins. Co. v. Ives, 56 Ill., 402; Anson v. Winneshiek Ins. Co., 23 Iowa, 84.

II. It is argued that the act of plaintiff, in. signing the application in blank, conferred upon the agent of defendant the power to give the statements required, and he thus, as to these matters, became plaintiff’s agent, who would be bound by all answers the agent should write. This rule might be true, if it appear that the insured expected or requested the agent to give the answers. Rnt if this cannot be inferred and the application was delivered to the agent without such an understanding, the insured ought not to be bound by the agent’s act. It may be that the insured was ignorant of the questions to be answered, or supposed that they would be omitted or waived, by the agent, or for some other reason was lead to believe that the application would not be wholly filled up. In such a case he ought not to be regarded as having constituted an agent to do what he had no intention of doing. The case before us illustrates the manner of preparing applications for insurance. All of the questions are not answered. It cannot be presumed that plaintiff intended all the questions to be responded to, when the defendant, as it appears, did not require such a thing.

As it cannot be presumed that plaintiff intended to answer the questions found in the application, it will not be presumed that he authorized defendant’s agent to make the answers for him.

Affirmed.