
    William H. Mead, Respondent, v. The Saratoga and Washington Fire Insurance Company, Appellant.
    
      Mre insurance—liability of a company on a policy the application fen'- which, incorporated into it, was made out by the agent and erroneously contained the words “ while occupied asa dwelling"
    
    At a time when a building designed to be used as a meat market had been substantially finished, the owner, at the solicitation of the agent of a fire insurance company, who was familiar with the property and its proposed use, signed an application prepared by the agent for a policy of fire insurance thereon. The application, when delivered to the agent, did not contain a description of the property to be insured, but thereafter the agent took a printed slip furnished by the insurance company, headed “ Village, dwelling, furniture and barn form,” and correctly filled out the description of the meat market and attached it to the application. This slip contained the printed words, “And all fixtures and appurtenances attached thereto while occupied as a dwelling.” The policy issued upon such application contained a duplicate of the written slip. The building in question was wholly unoccupied when the application and policy were written, but about three weeks thereafter it was occupied as a meat market and continued to be so occupied until it was destroyed by fire. The insured did not know that the policy contained the words “ while occupied as a dwelling,” until after the fire.
    
      Held, that the insurance company was liable upon the policy.
    Appeal by the defendant, The Saratoga and Washington Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Rensselaer on the 22d day of May, 1902, upon the verdict of a jury, and also from an order bearing date the 12th day of May, 1902,. and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      William S. Ostrander, for the appellant.
    
      John B. Holmes, for the respondent.
   Chase, J.:

The defendant is a co-operative fire insurance company; it does business through agents, but assumes no liability until applications for insurance are approved by its executive committee.

During the summer of 1899 plaintiff erected a two-story, shingle-roofed meat market in Corinth, N. T. The meat market included an office, a refrigerator and also other fittings suitable for the business of selling meat. One P. was the agent of the defendant at Corinth. His duties were to solicit insurance. He took applications for insurance on blanks furnished by the defendant, fixed the amount of insurance and the premiums to be paid therefor. He forwarded the applications so taken by him to the defendant and if • they were approved by defendant’s executive committee, the policies were sent to P. who delivered the same and collected the premiums. He also had authority to renew such insurance by indorsement as provided by defendant’s by-laws. A few days before the twenty-second day of August, P. came to the plaintiff and asked him when he would have his meat market finished, and further asked that he might he allowed to insure it for him. On the twenty-second day of' August, the meat market being substantially finished, P. again asked to be allowed to insure it, to which the plaintiff consented. Whereupon P. took one of the blank applications furnished by the defendant and asked certain questions therefrom and wrote therein the answers given by the plaintiff. Plaintiff then signed the application and he did not see it again until after the building was burned. All of the answers written in the application were truthfully given and recorded, but at the time the application was delivered it did not contain a description of the property to be insured. The agent did not say that he was going to add anything to the application, but thereafter he took a printed slip of paper, also furnished by the defendant, headed, ‘‘Village dwelling, furniture and barn form,” and in such printed slip correctly filled out the description of the meat market, and attached it to and made it a part of the application. The application so completed by the agent was forwarded to the defendant and a policy was written, on which policy was attached a duplicate of the printed and written slip that had been so attached to,the application. The part so attached described the property, and following the words of description were printed the words: “And all fixtures and appurtenances attached thereto while occupied as. a dwelling.” The policy was delivered to the plaintiff and he put it away among his papers and he did not know of the reference therein to the building being- occupied as a dwelling until after the fire.

On. the 14th day of December, 1900, the meat market burned. The defendant refused to pay the amount of the policy or any part thereof, and this action was brought to have the policy reformed and corrected, by striking therefrom the words “ while occupied as a dwelling, and inserting in place thereof while occupied as a meat market,” and for the amount of the loss.

The question in this case is not one of identity of property insured as in Sanders v. Cooper (115 N. Y. 279); Sanders v. Agricultural Insurance Co. (167 id. 261) and in Hughes v. Mercantile Mutual Insurance Co. (55 id. 265). No property other than the meat market was mentioned or considered in the negotiations for the insurance. The description of the property in the application and policy is applicable to the meat market and not applicable to any other building.

The statement in the application and policy, which the defendant claims was misleading, is not in the description of the building itself, but in referring to the risk as continuing while the building is occupied as a dwelling.” So far as sucli reference to the building describes it as a dwelling it was untrue. The building was wholly unoccupied when the application and policy were written.

About three weeks thereafter it was occupied as a meat market, and continued to be so occupied until the fire. The agent P. was actually employed on the building, and knew the purpose for which it was being erected, and the way it was in fact occupied when completed. If the defendant is chargeable with the carelessness of P. in making out the application, or with his knowledge in regard to the building, the recovery by the plaintiff in the trial court was right and should be sustained.

The nature of the business of insurance companies makes it necessary for them to have many local representatives. "Without such local representatives their business would be confined to that obtained by their executive officers, and principally to the locality where' their .home office is situated. Life, fire and other insurance business is principally obtained through paid representatives and solicitors. Such representatives and solicitors are stimulated to persistent effort . to obtain business by having their- compensation made dependent upon the business obtained. The plaintiff in this case was thus solicited by the defendant’s agent to become a member of and insurer in the defendant-company.

The courts of this State have for several years quite uniformly held that insurance companies were estopped from setting up the falsity of statements made in applications for insurance where such applications had been obtained by soliciting agents, and the false statements had been inserted in the application by the fraud or carelessness of such soliciting agent and not by any fault or misstatement of the person assured. ,

In Rowley v. Empire Ins. Co. (36 N. Y. 550) the court, referring to Plumb v. Cattaraugus County Mutual Insurance Co. (18 id. 392), say that the rule which had theretofore prevailed in this State relating to warranties in policies of insurance had been changed. The court further say : “ It is not establishing a harsh or unreasonable rule in reference to insurance companies to hold that their agents authorized ‘to take applications for insurance’ are acting within the scope of their authority in everything which they do which may be necessary to complete such applications. * * * Any other rule would be fraught with mischief. Insurance companies send out an army of agents to solicit business. Property holders are waited upon by them at their residences, and it is not going too far to say that many of the applicants would be unable to make a proper application and survey to meet the rigid and elaborate requirements of these corporations, while experience shows that they are not expected to do so. Hence these agents render such services as are necessary to enable the contracting parties to attain their respective, objects, the one to insure and the other to become insured against fire. To hold that in performing these preliminary labors touching the very business which must necessarily be transacted before a policy can be effected, the insurance broker becomes the agent of the applicant for insurance would seem to be an unnecessary and undesirable refinement.”

In Mowry v. Rosendale (74 N. Y. 360) the court say: “ The principle that if the statements in the application relied upon as breaches of warranty are inserted .by the agent for the insurers without any collusion or fraud upon the part of the insured, the insurer is estopped from setting up their error or falsity as breach of warranty, seems now well settled.”

To the same effect are Miller v. Phoenix Mutual Life Ins. Co. (107 N. Y. 292); Bentley v. Owego Mutual Benefit Association (23 N. Y. St. Repr. 470); O’Brien v. Home Benefit Society (117 N. Y. 310); Bennett v. Agricultural Ins. Co. of Watertown (106 id. 243); Kenyon v. Knights Templars Aid Association (48 Hun, 278); Quinn v. Metropolitan Life Ins. Co. (10 App. Div. 483); Peters v. U. S. Industrial Ins. Co. (Id. 533), and many other cases.

Where the agent undertakes to prepare the application of the insured or makes any representations to him. as to the character or effect of the statements of the application he will he regarded in doing so as the agent of the company and not of the insured. (16 Am. & Eng. Ency. of Law [2d ed.], 909, 945, 946.)

In May on Insurance (3d ed., vol. 1, p. 211), referring to the authority of an insurance agent, it is said: “ He is appointed by the company to facilitate and promote their business. To this end he is furnished with the necessary blanks which, after they are tilled up, he is to forward to the company’s office. Of course this filling up must be in such manner as to make the application fit for its purpose and valid as the basis of the contract. The questions propounded therein are those upon which information is desired. These are often very numerous and not unfrequently quite general and indefinite and susceptible of being answered briefly and substantially, or with greater or less minuteness of detail. How briefly and with what degree of minuteness the applicant may not know. The agent must be presumed to be clothed with the power to say when the question is satisfactorily answered ; that is, with sufficient fullness. * * * Is the building to be insured a shop or a store ? All the facts being made known and the answer being a matter of doubt, may not the agent, instead of incumbering the papers with a multitude of details, agree for the company that it is either according as he thinks the facts show- it to be % * * * There -must be, it would seem, an incidental power lodged in the agent, adequate to the explanation of' the proper description of the property or interest to be insured, the meaning of the words and phrases used in the questions, and the application of answers to the subject-matter so far as they may be necessary to perfect the instrument and render it fit for its purpose and promote the usefulness and efficiency of the agency. In short, the agent may do in this behalf what could be done at the home office if the application were filled up there upon conference with the officers. * * *”

In Richards on Insurance (p. 26) it is said: “ Where a written application is used, the applicant generally answers the questions orally and the agent is expected to fill in the blanks, and is, in fact, intrusted with some power and discretion in this regard like other agents engaged in canvassing for the benefit of their principal.”

An insurance company will not be permitted to avoid a policy issued by it upon the ground that the insured failed to notify it of certain facts of which the policy required notice, if it is shown that the company or its agent had full knowledge of those facts at the time of issuing the policy. The knowledge of the facts' is sufficient notice. (Rowley v. Empire Ins. Co., 3 Keyes, 557; 16 Am. & Eng. Ency. of Law [2d ed.], 943; McNally v. Phoenix Ins. Co., 137 N. Y. 389; Skinner v. Norman, 165 id. 565.)

The court in this case, without objection, submitted to the jury the whole question, directing them to return a' general verdict for the defendant, or for the plaintiff, fixing the amount of the recovery. The jury found for the plaintiff, and no objection is now made as to the form of the verdict. The verdict accords with our sense of justice and right as between the parties, and we are also of the opinion that it is in accordance with the rules of law applicable to this case, as already established by the courts of this State.

Judgment should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs; Smith, J., not sitting.  