Flynn v. Equitable Life Assurance Society of the United States

Bockes, J.:

According to the terms of the contract the company had a right to insist in this case on truthful answers and statements, as to all matters to which the attention of the assured was specifically called in the application for insurance, and as to which he was required to speak. Nor would it make any difference whether or not they were material to the risk, or had any connection with the cause of death. The parties agreed that any untrue or fraudulent answers, or any suppression of facts in regard to the health of the applicant should render the policy null and void. Thus the statements became warranties, and the company might insist that they should be absolutely true. (53 N. Y., 603; 30 id., 136, 163; 49 id., 211; 35 Conn., 225 ; 18 N. Y., 376; 55 id., 240, 244; 59 id., 557.) Nor were the statements in this ease relieved from the strict rule applicable to warranties by any explanation or declaration contained in the application, as in the last case cited. So it must be conceded that if the rule applicable to warranties is to have application here, the judgment is erroneous, for it cannot be disputed, and is not, that several of the statements contained in the application were untrue. But it is insisted that the company is estopped from insisting upon the breach of the agreement and warranties as to those false statements by reason of explanations, advice and assurances given by its agent, the examining physician, who, as is alleged, was correctly and fully informed of the truth of the case, and who himself inserted the answers and statements, declaring to the applicant that they were the right statements to be made by him under the facts as they existed in his case.

That Doctor Yedder was selected by the company to make the medical examination, stands undisputed. The papers as well as the oral proof establishes this fact, and it is also proved that he was requested by Corry, the accredited agent of the company, to take the application. If this be so, and I think this must be assumed from the evidence and the finding of the jury thereon, and especially as the transaction consummated through Doctor Yedder was adopted by the company, then Doctor Yedder held the relation of agent for the latter, and the case must be examined in that view as a matter of fact. This conclusion, if sound, brings the case within the decisions holding that the insurer will be estopped from showing a breach of warranty by proof of errors in the statements inserted in the application under the advice and by the direction of the .agent having knowledge of the facts as they really existed. It was held in Rowley v. Emp. Ins. Co. (36 N. Y., 550; also reported in 4 Ct. App. Dec., 131, with opinion by Davies, J.; also 4 Keyes, 557), that notice to the agent of an insurance company who was authorized to take applications for insurance was notice to the company, and that such agent, in filling up the blank application for insurance, acts, as the agent of the company, rather than of the applicant; and further, that misstatements made therein by him not induced by the instructions of the applicant, would not avoid the policy. So in Plumb v. The C. Co. Mut Ins. Co. (18 N. Y., 392), Judge Pratt remarked that he could not discover why the doctrine of estoppel would not apply to a case like this, where the party, through whose acts and representations the other party was induced to enter into the contract, claimed the right to show that the facts were different from what he represented them to be, for the purpose of showing a breach of the warranty, and thus avoiding what would otherwise be a binding contract. Rowley’s Case and Plumb’s Case above cited were commented on by Judge Grover, in Owens v. Holland Purchase Ins. Co. (56 N. Y., 565, on pages 570, 571), and the soundness of the decision in the former is questioned by that learned judge; but it is remarked at the conclusion, that none of the other judges concurred in that portion of Judge Grover’s opinion questioning Rowley v. The Empire Ins. Co. Thus it may be assumed that this case still stands as settled law in this State. It may be remarked also that it is in perfect accord with the decisions in several of the other States. Now the rule laid down by the court for the guidance of the jury, in the case at bar, was the correct one, according to those decisions. It appeared that Doctor Tedder was instructed to obtain the application. He was made the defendant’s medical examiner in the case. He had known the applicant for many years, and had been his attending physician. ' He made the inquiries propounded in the application, and received the answers. They were given him by the applicant, as the jury have found, truly and fully. He explained and advised the answers, declared them to be the proper answers and statements to be given under the facts of the applicant’s case. It ivas correct for the court to charge the jury, under the facts proved, that if they should find from the evidence that the assured made a substantial statement to Doctor Tedder of the difficulties under which he labored, and which had been proved before them on the part of the defense, then the company could not set up the untruthfuluess of the answers entered by him in the application as a defense; that if the company with a knowledge of the truth, advised the insured that the answers as written in the application would be the truth and the right answers to be given, then it could not take advantage of their untruthfulness. Such instruction was demanded by common honesty and fairness. It is suggested that here was a palpable fraud on the part of Doctor Tedder, and we are cited to the case of The Nat. Life Ins Co. v. Minch (53 N. Y., 144), as an authority that the company were not bound by his acts. But that was a case of collusive fraud between the examining physician and the applicant, to cheat the company. So it was there held that when there was collusion by one party with the agent to cheat the principal, the latter was not responsible for the acts or knowledge of the agent. The case at bar is not one of collusion with the agent. It is put on the assumption that the assured acted honestly,, and made no false statement or suppression of fact in his case. Tin conclusion we are of the opinion that the record discloses no error, and that the judgment should be affirmed with costs.

Learned, P. J., and Boakdman, J., concur.

Judgment affirmed with costs.