
    Wilkins v. Mutual Reserve Fund Life Ass’n.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Insurance—Application—Warranty—Forfeiture.
    An application for insurance warranted the answers to be full, correct, and true, and stipulated they should be part of the contract of insurance. The policy referred to the application as a part thereof, and provided that every person acquiring any interest in the contract adopted the application and statements contained therein as his own, admitted them to be material, and warranted them to be full and true. The application of the assured turned out to be untrue as to the facts of his consulting a physician, and having on two occasions been an inmate of a hospital. Held, that the company was relieved from liability on the policy.
    2. Same—Application Written by Agent.
    The application warranted the answers and statements thereof, whether written by the applicant by;his own hand or not, to be full and true. The policy provided that it was issued in consideration of the application, which was made a part of the contract, and in consideration of each of the statements made therein, “which, whether written by his own hand or not, ” every person accepting or acquiring an interest in the contract adopted as his own. Held that, as the assured assumed the acts of the agent, and bound himself for the truth of the statements contained in the application, he could not he relieved by the fact that the agent hird acted faithlessly in filling out the application.
    S. Same—Waiver op Forfeiture.
    The policy provided that “no agent of the association has authority to make, alter, or discharge contracts, waive forfeitures, * * * and no alterations of the terms of this contract shall be valid, and no forfeiture thereunder shall be waived, unless such alterations or waiver shall be in writing, and signed by the president, ” etc. Plaintiff, the assignee of the policy, before the assignment, consulted an officer of the company as to the regularity and validity of the policy, and the agent represented the policy to be a valid security. It did not appear that at that time any information of the fact of the answers being untrue had been brought to the attention of defendant or the agent. Held, that the agent's representations to plaintiff would not preclude defendant from taking advantage of the untruthful statements in the application, as the agent could not waive any forfeiture.
    Appeal from circuit court, New York county.
    Action by Peter AVilkins against the Mutual Eeserve Fund Life Association. The complaint was dismissed at the trial, and plaintiff appeals.
    Argued before Brady and Daniels, JJ.
    
      William G. Wilson, for appellant. Alfred Taylor, for respondent.
   Daniels, J.

The plaintiff brought this action as assignee of a certificate of life insurance issued by the defendant upon the life of Daniel S. Sanford. By the terms of the certificate there became payable to him from the death fund of the association the sum of $10,000 from and after the period of his decease. This certificate was assigned to the plaintiff and another person, the latter having also added a further assignment, including his own interest. The assured died on or about the 7th of February, 1886, and the ordinary notice and proofs of the fact were supplied to the defendant. The association resisted the right of the plaintiff to payment of the amount mentioned in the certificate on the ground that false representations had been made by the assured in the application for the certificate, rendering the certificate itself invalid and inoperative. These representations consisted in the answer of the assured, to the question requiring a statement of his occupation, that he was a carpenter; and, in an answer to a further question, whether he had consulted any physician regarding his health within the preceding five years, and, if so, what physician, and when, and for what disease. To this lie answered, “Ho.” The further inquiry was made whether he ever had any illness or injury not enumerated in preceding questions, or liad been an inmate of any hospital; and to that he answered in the negative. By the proof the fact was established that he had at one time served as cook or steward on sailing vessels, and within five years preceding the date of the application lie did consult a physician regarding his health and for disease, and that the answer made to the inquiry concerning that subject was untruthful. It was also proved that from October 3, 1882, to the 25th of the same month he had been an inmate of a hospital; and also that he was an inmate of a hospital within three years prior to the time of his application for the certificate, and that his answer that he had not been was untruthful. And these answers, under the authorities, weie held at the trial to avoid the certificate. This resulted from statements in the application signed, by the assured, that “I do hereby warrant that my answers, as written to the above questions, are full, complete, correct, and true, and the same shall be made a part of the contract of my certificate of membership in the Mutual Reserve Fund Life Association.” And “It is hereby warranted by the applicant that the answers and statements in this application, whether written by his own hand or not, are full, complete, and true; and it is agreed that this warranty shall form the basis and shall be a part of the contract between the undersigned and the Mutual Reserve Fund Life Association, and are offered to said association as a consideration of the contract applied for. And the applicant further agrees that if any statements, representations, or answers made herein are not true, full, and complete, then the certificate to be issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association.” And from a further provision in the policy that “in consideration of the application for this certificate of membership, which is hereby referred to and made a part of this contract, and of each of the statements made therein, which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material, and warrants to be full and true, and to be the only statements upon which this contract is made. ” By these stipulations and provisionsthe assured warranted the truth of the representations which had been made by him; and as they turned out to have been untruthful as to the fact of his consulting a physician, and having on two occasions been an inmate of a hospital, that relieved the defendant from liability for the payment of the money mentioned in the certificate. It was, however, proposed to be proved that the assured, at the time when he made the application for the insurance, informed the agent of the defendant as to the facts being otherwise. This •offer of proof was rejected by the court, and the cases of Flynn v. Insurance Co., 78 N. Y. 568; Grattan v. Insurance Co., 80 N. Y. 281; Bennett v. Insurance Co., 106 N. Y. 243, 12 N. E. Rep. 609; and Miller v. Insurance Co., 107 N. Y. 292, 14 N. E. Rep. 271,—have been relied upon as authorities establishing the incorrectness of this ruling. But they are not entitled to that effect in this case, for the reason that the assured, by the application, took upon himself the entire risk of the truth of the representations •made by him, and on the correctness of which the certificate was made to depend. In néither of the cases which have been referred to were these provisions contained, and that distinguishes those authorities from this action; for in this instance the assured assumed the responsibility for the correctness of the acts of the agent in filling out and completing the application, and 'thereby conclusively bound himself for the truth of the statements which had been made. The effect of his agreement to accept for himself, and become bound by, the acts of the agent in filling out the application as those of his •own agent, was considered in Chase v. Insurance Co., 20 N. Y. 52, and also in Alexander v. Insurance Co., 66 N. Y. 464; Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. Rep. 837; and these authorities all agree, where the assured in this manner accepts and binds himself for the truth of the statements contained in the application, that he cannot be relieved from that result by proof of the fact afterwards made that the agent improperly, as well as untruthfully, filled out the application. Where, on the contrary, he expressly assumes the acts of the agent as his own acts, and binds himself for' the truth of the statement made, then neither he nor his representatives can be relieved from the effect by proof that the .agent had acted faithlessly. This results from the voluntary agreement of the insured himself, over which •a court of justice has no authority by way of relief. That the application and policy or certificate may be subjected by the statements contained in them to this disability will no doubt seriously impair the value of life insur-ance policies. And as the court is not authorized to relieve the party from the agreement voluntarily entered into by him in this way, the fact itself can be no further useful than to enjoin upon persons taking policies of life insurance greater care and circumspection to discover whether anything may be contained in the application or the policy- which in the end will render it a fruitless source of reliance. There is a probability that this agent, in reducing the answers of the assured to writing, was faithful to the obligations of his employment, for he stated in his evidence (and that was not contradicted) that he filled out the blank from information obtained from Mr. Sanford, and that it was all in conformity with what he had stated to the agent.

The plaintiff, upon the trial, proposed to give evidence from which the position has been taken that the company had placed itself in a condition in which it could not take advantage of the untruthful nature of these answers. For this purpose it was proposed to prove, before the assignment was taken of the certificate, that the parties repaired to the office of an agent of the company, and there consulted him as to the regularity and validity of the policy, and that he substantially represented the policy to be a valid security. This evidence was rejected upon the trial, upon the ground that the agent, even though he might have been a director in the company, had no authority to change the certificate, or to prevent the company from taking advantage of these untruthful answers. It was not proposed to be shown that any information of the fact of the answers being untruthful had been brought to the attention of the defendant, or either of its officers, or to the attention of this agent, and without information to that effect the agent would naturally assume that the certificate had been obtained by truthful representations made on behalf of the assured; and in that state of the case there could be no reason for assuming or supposing that it was intended to surrender or waive any advantage that the company might be entitled to claim from the fact being otherwise. The assurance that the certificate was a safe investment, or might be relied upon as having been legally or correctly issued, would, in this state of the facts, include no more than that the conduct of the company had been such as to bind it, so far as its own" proceedings went, legally and effectually for the payment of this money. It would not surrender or prejudice its right to avail itself of the objection that there had been such misconduct on the part of the assured himself, which at the time was unknown to the company or its agent, as rendered the certificate invalid, and relieved the company from this obligation. As much as this was in fact provided for in the certificate itself, declaring that no agent of the association has authority to make, alter, or discharge contracts, waive forfeitures, extend credit, or grant permits, and no alteration of the terms of this contract shall be valid, and no forfeiture thereunder shall be waived, unless such alteration or waiver shall be in writing, and signed by the president and one other officer of the association, and of the extent of which the plaintiff, as assignee, is chargeable with notice. That precluded the agent, even though he might have been a director of the company, (Bridge Co. v. Bachman, 66 N. Y. 261,) from the exercise of such authority over this certificate as would exclude the right of the company to make the defense which proved successful upon the trial, for it was there provided that no forfeiture should be waived unless the waiver was in writing, signed by the president and one other officer of the association. It was not proposed to be proved that any waiver of this description had taken place, and without it the evidence which was rejected would have been entirely useless. As the case was made to appear, the plaintiff was not entitled to recover, and the judgment should be affirmed.  