Berry v. American Central Insurance of St. Louis ( 1890 )

Hardin, P. J.

After carefully looking into the evidence given on the trial we are satisfied that the findings of fact are supported by the evidence, and are in accord with the weight of the evidence ; we must, therefore, accept the findings of fact made by the trial judge. We cannot, therefore, agree with the learned counsel for the appellant, who claims in his points that “ there is no evidence out of which the court can spell fraud,” in respect to the circumstances attending the interview between the plaintiff and the agent of the defendant at the time the plaintiff was induced to surrender the policy and receive from the defendant’s agent a draft upon the defendant for $400.

We have looked at the exceptions taken during the progress of the trial and find nothing in them justifying an interference with the decision made at the circuit. Upon the main questions involved in the case, we are of the opinion that they are satisfactorily discussed and disposed of by the opinion of the learned trial judge. We therefore affirm the judgment entered.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.

Note on “ Knowledge of Insurer’s Agent.”

The insurer is bound by the knowledge of its agent. Berry v. Am. C. Ins. Co., 55 Hun, 612.

Suing upon a policy which contains an express limitation of the agent’s authority, is conclusive evidence of plaintiff’s knowledge. Hill v. L. Ass. Cor., 16 Daly, 120.

The knowledge of the agent of the insurer that the property stands upon leased lands operates as a waiver of a condition in the policy that such fact be stated. Brothers v. Cal. Ins. Co., 20 N. Y. St. Rep. 207.

The writing of the policy by the agent in name of the party, who was deceased to his knowledge, waives the condition requiring the name of the owner to he correctly stated. Burke v. N. F. Ins. Co., 34 N. Y. St. Rep. 701.

The insured must prove both the communication to the agent and its truth, to avail himself of an estoppel arising out of such communication. Carpenter v. G. A. Ins. Co., 52 Hun, 249.

.If an agent of the insurer by mistake inserts in the application an erroneous answer, which the applicant did not in fact make, the insurer must be held responsible for the error of its agent. O’Brien v. Home Ben. Soc., 51 Hun, 495.

The insurer is estopped from questioning the truthfulness of the application for a policy of insurance, where the answers to the interrogatories therein were written by the agent of the insurer, who was at the time fully apprised of the condition of the insured. Bentley v. Owego Mut. Ben. Soc., 52 Hun, 613.

A misrepresentation in the application for a policy as to the amount of encumbrances upon the property will not defeat a recovery, where the same was inserted, by fraud or mistake, by the company’s agent and without the knowledge or authority of the assured, who signed the same. Smith v. Agricultural Ins. Co., 54 Hun, 638.

The law will presume, where the insured properly states the title of the property to the company’s agent, that the latter did its duty in reporting such facts to the company. Walton v. Agricultural Ins. Co., 24 W. Dig. 214. The company will not be allowed to take advantage of his failure to properly express the same in the writing. Id.

An applicant for fire insurance, if he correctly states to the agent of the company the facts relating to the condition of the property, is not responsible for an error on the part of the agent in incorrectly inserting such statements in the written application. Bennett v. Agri. Ins. Co., 106 N. Y. 243.

Where the plaintiff informs the agent, who issued the policy, ‘that his son, who lived in Chicago, had bought the property for him, and he was to have it as a home as long as he lived, and that he was to insure, etc., it was held, in Berry v. Amer. Cent. Ins. Co., 132 N. Y. 49, that this statement fairly gave notice to the agent that he was not the owner. The conditions of the policy as to title were waived. Id. This conclusion is not weakened by the fact that in the policy there is a condition that no agent has power to waive any of the conditions of the policy and no notice to, or agreement by, any agent will be binding on the company, unless expressed in writing, endorsed upon the policy and signed by the agent. Id. Where the agents, who issue the policy, are general agents having authority to make contracts without reference to the home office, their power to waive conditions in the policy is co-existent with that of the company itself. Id.; Trustees v. Brooklyn F. Ins. Co., 19 N. Y. 305; Walsh v. Hartford F. Ins. Co., 73 Id. 5.

Conditions, which enter into the validity of a contract of insurance at its inception, may be and are waived by agents, if so intended, tliough»they remain in the policy when delivered. Id.; Van Schoick v. Niag. F. Ins. Co., 68 N. Y. 434; Bennett v. North B. Ins. Co., 81 Id. 273; Woodruff v. Imperial F. Ins. Co., 83 Id. 133; Haight v. Cont. Ins. Co., 92 Id. 51.

See further on this subject, Cross v. Nat. F. Ins. Co., 132 N. Y. 133.