An insurance company may set up false warranties in an application as a defence to a policy, or it may waive them and accept its liability, notwithstanding such warranties. In this case the defendant, ignoring its plea of the general issue, insisted at the trial that the only issue, as a result of extraordinary pleadings, was the question whether the application was signed by the insured after the answers to questions put by the medical examiner were reduced to writing. The jury found that it was not signed after the answers were reduced to writing.
The defendant claimed that everything else was admitted, and even objected to the proof of death of the insured. The insistence upon that one point and going to trial upon it to the exclusion of other testimony, and taking the chances of a verdict, amount to a waiver of other grounds of defence.
There was ample testimony to support the special finding, so that the only question now is its effect. That the finding is upon a remotely material issue is obvious. If the defendant had been compelled to go to trial upon that issue alone, or had demurred to the pleadings and the demurrer had been overruled, as in Weldon v. Wood, 9 R.I. 241, the case would have stood on a different ground. But when the defendant tenders an issue upon which a trial is had, he cannot be heard virtually to say: "My pleading was wrong; it amounted to nothing; and by reason of misleading the court into the trial of such an issue, I am now entitled
to a new trial." The fact, therefore, that the issue tried did not directly bear upon the merits of the case is not a sufficient ground for a new trial, when the defendant itself set up the issue and insisted upon it. Taking the issue, then, as found, the insured did not sign the answers to the questions put by the medical examiner as a part of the application for the policy in suit after they were reduced to writing. Hence, they were no part of his application. Admitting this, the defendant claims that, as the application was made a part of the policy, there was no consideration for the policy. This does not follow. There are other parts of the application to which no objection was made. But if it be taken as a whole, the part involved in the pleadings is a part which is required to be written by the company's own officer. The application says: "The medical examiner will put the following questions and fill out the answers in his own handwriting." This clearly makes the examiner the agent of the company for this purpose. The insured could not write his answers if he would. The company takes this part of the application out of the hands of the applicant and writes the answers as with its own hand. In this respect, therefore, this case differs from those cited by the defendant. In Reed v. Equitable Co.,17 R.I. 785, the insured claimed that a statement to the agent who procured the insurance contrary to the application, was a notice thereof to the company, but, following the settled law of this State, the court held that it was not. In Jarrett v. JohnHancock Co., 18 R.I. 754, the insured had previously applied to the same company for insurance and had been rejected. In the second application there were misrepresentations, and the plaintiff claimed that because the medical examiner was the same at both times, the company was charged with knowledge of the first application, although it appeared that the medical examiner did not know that the first application had been rejected. The court held that there was no waiver of the misrepresentation. Defendant further claims, under the decision in New York Life
v. Fletcher, 117 U.S. 519, that it was the duty of the insured to read over the answers before signing; but the finding in this case was that
the answers were not written out at the time of signing, and it does not appear in that case, as it does in this, that the medical examiner was required to write out the answers himself. The insured in the present case did not make use of an agent of limited authority to write out his statement for him, adopting it as his own by signing it, nor does it appear that the statements to the examiner were false. The defendant sought to have it so appear by special finding that the answers were written in before the insured signed the paper, but the jury having found to the contrary, there is no finding that the answers, as written, were his answers; hence, there is no contradiction of a warranty, for there was no warranty. Neither is there any implication of authority in an agent to falsify answers, since it does not appear in the case whether the answers as given were true or false.
The defendant, having admitted everything inconsistent with the claim that the paper was signed after the answers were written, has thereby admitted that there is no other ground of objection to them.
But, in any view, the answers were given to the only person authorized by the company to receive them, which is equivalent to giving them to the company itself. If they were correctly given, as must be assumed in this case, and mistakenly or willfully written wrong, the application having been accepted in blank, the fault would lie with the defendant and not with the insured. In view of the facts, therefore, that the application was signed without written answers to the medical part; that it was handed to the expressly authorized agent of the company to receive both the answers and the application; that there is nothing to show that the answers as given were false; and that under the terms of the application the examiner was acting for the company and not for the insured in writing down the answers, we see no valid ground of objection by the defendant to the verdict, and no error in the rulings of the court.
Petition for new trial denied.