MUTUAL BEN. LIFE INS. CO,. v" ROBISON. (Circuit Court, N. D. Iowa, E. D.
March 21, 1893.) LAW
W'here an application' for insurance is made in one sta.te, by a resident and cl.'jizen thereof, through agents located therein, to an insurance company of another state, the polley, though actually issued in such other , state; to take effect by its terms upon payment of first premium, and the policy is delivered and premium paid in the state where the application is made, the law of that state governs the interpretation and force of the contract.
WE b'SIJRANCE-POLIOy-FOREIGN COMPANIES-WHAT PLIOATioN.
An insurance company undertaking to do business in It state other than thato! its home 'and polley issuing office is subject, with reference to such business, to the terms and conditions by the laws of such state imposed on. such business.
A.l;I. company doing business in a state other than that of its llOme .office will not be permitted to Withdraw the business done in such Btate from the obligatory force of the.statutes of that state, by the insertl:bn, in its forms of application or policy, of a clause expressly providing that the law of the state of its home office shall govern its contracts of
'Wh(i!re an )nSllrance company has accepted the premiums, and the insured lias' on the iJl4emnity .contJ,"act provided, in the policy, the insurance compuny is as' much., estopped' 'to cancel the policy after the insured,has become inS\lClt a physical condition that he cannot obtain desirable upon h1&life in any reputable company as it would be ,estopped, to.Avoid the polley aftel' the Insured's death.
InEquity. Suit by the Mutual Benefit Life Insurance Company against CI:l.a:i-les W. RobiSon to canCel insurance PQlicies. Bill dismissed. ' Henqe\,$.P:tl, Hurd, Daniels; & Kiesel, for plaintiff. Utt Bros, &Michel,for ·defendant.
WOOLSON, District Judge. The plaintiff, a corporation organized under the laws of thestate of New Jersey, and being a purely mutual insurance society or corporation, has brought this action, inequity, to cancel four policies of insurance, of $5,000 each, which were by plaintiff issued to, and which are held by, defendant, who is a resident and citizen of the state of Iowa. The evidence shows that on March 17, 1890, the defendant signed a written application to the plaintiff company for $20,000 life insurance upon his own life, and that, as requested by him, the plaintiff company duly issued to him, and on his own life, four policies of life insurance in the plaintiff company, each policy being dated March 24, 1890, and the same being numbered,respectively, Nos. 157,618, 157,619, 157,620, and 157,621, of said plaintiff company; that, at the date of said application, defendant was, and for over 30 years theretofore had been, a resident of the city of Dubuque, Iowa; that, at said date, one T. F. McAvoy was the general agent for the state of Iowa of the plaintiff company, and Charles J. Brayton was the agent at Dubuque of said
MUTUAL BEN. LIFE INS. CO. tl. ROBISON.
company; that, prior to said date, said agent Brayton and defendant had interviews on the subject of defendant's taking out insurance in said plaintiff company; that, at that date, the plaintiff had two local medical examiners in its employ at said city; and that said Brayton had informed defendant that the medical examination, required of all applicants for insurance, might be made by either of these two examiners; and that defendant elected to have the same made by Dr. G.M. Staples, one of said medical examiners, and who for many years had been the family physician of the defendant. On said March 17, 1890, defendant presented himself before Dr. Staples for such medical examination, which was had, and the reo sults thereof were entered upon one of the company's blanks, which had been furnished for that purpose by Agent Brayton. Said ex· amination having been completed, defendant subscribed said appli· cation at the several places thereupon required. Said medical aminer and said Agent Brayton and said State Agent McAvoy signed it also; and, said state agent having forwarded it to the home office of the plaintiff company, the four policies above de· scribed were issued, and were forwarded by plaintiff to said state agent, who, in turn, sent same to said Agent Brayton, at Dubuque, who collected from defendant the premiums therefor, and thereupon delivered said policies at Dubuque to defendant. Shortly before the second payment of premium, or premium falling due in March, 1891, became due, the plaintiff company had received information, as its officers believed, that certain answers by defendant subscribed in said application were untrue; and thereupon plaintiff tendered back to defendant the premium received, with interest, and refused to receive said second preillium or payment, (which defendant. ten· dered,) and brought this action to cancel said policies. The answers whose untruthfulness plaintiff urges as the grounds for such cancel· lation are two:
"Have you ever had · · · spitting of blood?",' Answer: "No." "For what have you so'ught medical advice during the past seven years? (b) Dates? (c) Duration? (d) Physicians consulted?" Answer: "Debility (c) 10 days. (d) G. M. from overwork. (b) February,
A third ground was alleged in petition, relating to varicose veins; but this ground was abandoned, no evidence relating thereto was taken, and counsel stated the same was not pressed. 'l'he claim of the plaintiff is that by the terms of the application which defendant signed, as well as by the face of the policies, such answers are made warranties whose untruthfulness avoids the contract of insurance, and entitle plaintiff to a decree of cancellation. The phraseology of the application does not materially differ on this point from that in general use by life insurance companies:
"I hereby agree 1hat the answers given herewith to the questions of the agent and examiner, which I declare and warrant to be true, shall be tile basis of my contract with the company."
So that, if these answers are not true, and plaintiff is entitled herein to urge their falsity, a decree canceling said policies should be entered.
,]'. ,'FEDERAL REPORTER,
. '(f'.(qthreshl11d. of ourinveatigation,we are met withtlie oppo$:ing ,W$Un of the pa,t'ties ,as to the state whose law-s are to be held i!.ppUeable to the force of the contract of insurance aO'Ught to be canceled;· Plaintiff contends that, by the very phraseologyQf the application, which defendant signed, this question is. decided against defendant. The application states (and immediately following the quotation above given therefrom) that "such contract shall at all times and 'places be held and construed to have been made in the city oLNewark, New Jersey." Therefore plaintiff, applying the laws of the state of New Jersey, and the construction thereofas,gi'ven by the supreme court of that state, argues with much force for the decree of cancellation. Defendant contends that the laws of· the state of Iowa, and the construction thereof as given by the supreme court of that state, are to be applied. The seeming importance, of this contention demands that this point shall be first settled. The underlying principle which plaintiff claims is conclusive of this contention has fr.equently, in its general scope, been before the supreme court of the United States. Perhaps it has received no clearer consideration than t,hat given in Pritchard v. Norton, 106 U. So 124:, 1 Sup. Ct. Rep,' 102. Speaking of this point, as now urged by plaintiff, Mr. Justice Matthews says:
U'lhe law we llJ;C in search of which Is to decide upon the nature, interpretation, llnd validity of the engagement in question is that which the parties have, .either expressly 01' presumptively, incorporated into their contract as constituting its obligation. It. has never been del'cribed than it was in· cidentally by Chief Justice. Marshall in Wayman v. Southard, 10 Wheat. 48, where he defined it as a principle of universal law: 'The principle that in every forum a contraCt is governed by the law with a view to which it is made.' · oil · And fu IJoyd v. Gnibert, L. R. 1 Q. B. 120, in the court of e.xchequet ehamber,lt was said that 'it is necessary to consider by what general law the parties intended that the transaction. should be governed, or rather by what general law it is just to presume that they have intrusted themselves in the matter.' It is upon this ground that the presumption rests that the contract Is to be Performed at the place where it is made, and to be governed by its laws, there being nothing in its terms or in the explanatory circumstances of its execution, inconsistent with that intention."
And plaintiff urges further that since the policies were signed at and issued from the home office of the plaintiff company in New Jersey, and by their. terms the premiums thereon are to be paid at that office, and any loss thereon is also to be paid at said New Jersey office, therefore these facts, in with the agreement above quoted from the application, compel the decision in favor of its contention. The general principle of law above stated is too well settled to admit of dispute, as to any contract and set of facts to which it applies; but, like all other general principles, it may have its exceptions, and it is not properly applicable to every contract of insurance. At the date of said application for insurance, defendant re$ided in the state of Iowa. The soliciting from defendant by plaintiff's agent of insurance, the examination of defendant, the propounding of the questions to him, the giving of his answers thereto, and his subscribing such application, all these took place in Iowa. Defendant's .entire connection with, the application was in Iowa. The policies were sent by plaintiff to its Iowa state agent, were re-
MUTUAL BEN. LIFE INS. CO.
ceived by him. in Iowa, and thence forwarded to the agent at Dubuque, Iowa, who collected at Dubuque, Iowa, frolD. defendant the premiums, and thereupon delivered to defendant, at said Dubuque, the policies. By the very terms of each of the policies, "this policy does not take effect until the first premium shall have been actually paid;" so that the contracts of insurance now sought to be canceled were not to become, and did not become, effective 'I111til the payment had been made in Iowa of the first premium thereon. Wall v. Society, 32 Fed. Rep. 273, in the facts last recited, is with the case at bar. In that case the question :was squarely presented, "Is the con· tract sued on governed and to be construed by the laws of the state of New York, or by the laws of the state of Missouri?" Mr. Justic:e Brewer, (then circuit judge,) on this point says, (page 275:)
"In respect to the firSt question, these, I think, must be taken as the accepted facts: The defendant is a New York corporation, doing business in the state of Missouri. The insured was a resident and citizen of :M:issouri, and made his application here, which was forwarded, to New York. The application was accepted, the policy fully prepared, and signed in that state, and sent to Missouri, and delivered to defendant here. By the terms of policy all premiums are payable at the defendant's office in New York. It the sum insured shonld become payable, the payment is to be made at its office In New York. None of the terms of the policy can be modified except by one of the four general officers of the society, and no modification is claimed. Under these facts, I have little doubt as to the true answer to be made to this question."
And thereupon, holding the insurance contract to be governed by the laws of Missouri, he proceeds to apply the laws of that state. On the trial, judgment having been rendered against the company, the case was taken by the company to the supreme court of the United States. The judgment was there affirmed. Mr. Justice Gray, in delivering the unanimous decision of that court, (140 U. S. 231, 11 Sup. Ct. Rep. 822,) substantially restates the facts as the same are contained in the above extract from Judge Brewer's opinion, adding, however, that "the application declares that the contract shall not take effect until the first premium shall have been actually paid, during the life of the person herein proposed for assurance;" and the opinion concluded that, "upon the record, the conclusion is inevitable that this policy never became a contract, binding either party to it, untU the delivery of the policy and the payment of the first premium in Missouri; and, consequently, that the policy is a Missouri contract, and governed by the laws of Missouri." Berry v. Indemnity Co., 46 Fed. Rep. 440, contains a clear and positive announcement on the point in question. The point was squarely before the court whether the Missouri statute applied to the case. The trial was had in the western Missouri district. Circuit Judge Caldwell, in a decision giving judgment against the company, says:
"It this Missouri statute is applicable to the policy in suit, it puts an end to the company's defense. The company contends that it is not applicable. · · · It is said the policy Is an Illinois contract. But clearly this is not so. The company established an agency and carried on its business in this state, [Miss01lri.] It was through that agency the assured, who was a citizen and resident. of this state, made his application, and received his policy. The fact
w,as signed officers, of the company ,In Chicago has no '"It,was transmitted' to the company's agent iIi MISsouri, who recel.v'ed thepretlllutn, (called in the policy Ian ,entrance fee,') and delivered the at h1&,home in this, state; and it took effect at that place and fr9m that
case waS taken to the circuit court of for the eighth circuit;' and judgment affirmed. 50 Fed. Rep.' 511, 1 C. C. A. 561. In the opinjon by that coUrt, Judge Shiras specially con· siders this point:
..It appearsfJ.'om the findings of fact that the company is a corporation created under the laws of Illinois; that it was engaged in soliciting business in Missouri, having agents In the latter state for that purpose; that, by the exof the charter of the company, the contract of insurance does not press become bInding untU the delivery to the Insured; and that the policy sued, 011 in this case was delivered by the agent of the company to [insured] at TrentpD, Missouri, at wblch place the application for the issuance of th(J poUCY,had been made and delivered to the agent of the company. Under these ,circumstances, it cannot be successfully malntained that the contract made In illinois. ita inception and completion it was made In Missouri·. and is therefore to' be construed in cODDection with the provisions of tb,e statutes of that state. The facts of this. case brlng it clearly within the ruling .of the supreme court In Assurance Co. v. Clements, 140U. S. 226, 11 Sup. pi. Rep. 822, In which it is held that a policy issued In New York, by 8l c9r,Poration of that stl\.te, upon the life of a resident of MissouJ."l, it being provided that the contract should not take effcct nntil actual payment of the first premium, did not become a completed contract until the payment of the first premium and delivery of the policy; and that, as these acts were done in MisspPr;!., the policy must be qeemed to be a Missouri contract, and to be governed by the laws of that state."
We are therefore jnstified in holding that, unless the clause in the application (with reference to construing the contract as made in New Jersey) shall take the case out of the rule as clearly establislu;;d with reference to the point under consideration, ·the contracts set outin petition herein must be construed by the laws of the state of'Iowa. So fir 1118 this point under consideration affects the grounds on which the plaintiff company claims cancellation of d fendant's policies, it may be. here stated (leaving details for later mention) that, if defendant's cOl1tention is sustained, the agent, state agent, and medical examiner are to be regarded as agents of plaintiff in their dealings with defendant in the matters complained of in the petition, and the facts and conversations attending the medical examinatibnof defendant may be admitted in evidence; while, if plaintiff's contention is sustained, evidence as to these attendant facts and circumstances will, as plaintiff claims, become incompetent as against the written answers in the application. The materiality of this contention is evidenced by the thoroughness and force with which each party has presented his side of the discussion. Section 1 of chapter 211 of Acts of 18th General Assembly of Iowa (Laws 1880) is as follows:
"Any person who shall hereafter solicit Insurance or procure appllcations therefor shall be J;teld to be the soliciting agent of the insurance company ')1' association Iasuihg a policy on such application or on a renewal thereof, anything in the application or policy to the contrary notwithstanding."
No like statutory provision is shown to be contained in the laws of New Jersey. Assuming that plaintiff's contention, if sustained, will have the broad effect which it claims for such contention, the question to be solved is whether the defendant is to be permitted to claim the benefits of the Iowa statute, notwithstanding that the application signed by him declares-so plaintiff claims-that the laws of New Jersey shall govern the interpretation and force of the contract. In other words, does not the language of this declaration in defendant's a,pplication waive any benefit he might otherwise claim from the Iowa statute? And is it not competent for defendant thus to waive the Iowa statute, and place the contract under the force of the statutes of New Jersey, whence the policies were to and did issue, so that defendant is thereby estopped from claiming that the Iowa statute shall apply thereto? Weare not required to con· sider this question as an original one now first proposed for solution. The law seems well settled in this circuit. In 1882, in Fletcher v. Insurance Co., 13 Fed. Rep. 526, Judge Treat had occasion to consider' this question, and the cogent reasoning of his opinion was fully concurred in by Circuit Judge McCrary:
"Inasmuch as the policy sued on declares that it rests on the basis of answers made to the application, and that said polley was to be Issued at the home office In New York, on return thereto of the application, can the plaintiff avail himself. of the force of the Missouri statute? The defendant company was doing business In Missouri, with the privileges granted to it here, when said Insurance was effected. It may be that the formal acceptance of the proposed contract was, by the letter of the contract, to be consummllted In New York. The broad proposition, however, remains, no artifice to avoid which can be upheld. The statutes of Missouri, for salutary reasons, permit foreign corporations to do business In the state, on prescribed conditions. If, despite such conditions, they can, by the insertion of clauses in their policie!!, withdraw themselves from the limitations of the Missouri statutes, whileobtaining all the advantages of the license, then a foreign corporation can upset the statutes of the state, and become exempt from the positive reqUirements of law. Such a proposition is not to be countenanced. The defendant corporation chose to in business within that state, under the terms and conditions named in the statute. It could not by paper contrivances, however specious, withdraw itgelf from the operation of the laws, by the force of which It could alone do business, within the state. To hold otherwise would be subversive of the right of a state to decide on what terms, by comity, a foreign corporation should be admitted to do business or be recognized therefor withIn the state jurisdiction. Each state can decide for itself whether a foreign corporation shall be recognized by it, and on what terms. PrimarilY"a foreign corporation has no' existence beyond the territorial limits of the state creating it, and, when it undertakes business beyond, it does so only by comity. The defendant corporation, having been permitted to do business in Missouri, under the. statutes of the latter, was bound by all the provisions of those statutes, and could not, by the insertion of any of the many clauses.in its form of application, etc., withdraw Itself. from the obligatory force of the statute. The contract of insurance, therefore, is a Missouri contract, and subject to the local law."
This case was taken to the supreme court of the United States, and is found in 117 U. S. 519, 6 Sup. Ct. Rep. 837. The point just quoted from Judge Treat's opinion is touched upon but but the justice writing the opinion uses this language:
company Is a CQr;poratlon the laws of New York, but it also business III MfSsoul1., through agents residing there, and, of course, with reference to the business done in that state, 18 subject to its laws."
In Wall v. Society, 32 Fed. Rep. 273, (to which reference was above made,) Circuit Judge Brewer had occasion to consider this question. The defendant company had set up as grounds of defense against the claim on the policy that the contract of insurance was to be construed under and governed by the laws of the state of New York, and therefore, because of nonpayment of premium, the insured was entitled but to the surrender value which was named in the policy; whereas, if the Missouri law applied, the holder of the policy would be entitled to a much larger amount, under the provisions of the Missouri statute. The company's answer set up its contention on this point, and its claim to have the policy construed by the New York law. The holder moved to strike out these portions of the answer. Judge Brewer held, as we have seen, supra, that the contract was to be governed by the Missouri law. The court was then brought directly to the point as to whether the stipulation, in the contract providing for the payment, in case of forfeiture for nonpayment of premi,um, of the amounts therein stated, (which we may call "forfeiture values,") constituted a waiver of the provil!lions of the Missouri statute, and, was binding on the insured., Mter quoting the Missouri statute as 19 forfeiture values, he says: '
"Now,lh the policy sued on, there is a nonforfeiture clause, but contaflllng a dUTerent Pl'ov18ion; lind it 18 alleged that in the application the insured waived and rellllquIshed' all right or claim to any other surrender value than thiltpro'rlded in the policy, whether required, by the statute of the state or not. ThlB 18 the doubtful question. It 18 strenuously Insisted by the defendant that' 'the statute of Missouri neither forbids nor declares null, nor makea anrwilie lllegal, such a waiver as the one in question; that it merely gives t\ right or privilege to theinsul'ed, whIch, like an,v other personal right or privilege, he may, for sufficient consideratIon, waive; lind that such waiver, not forbidden by the statute, Is not contl'ary to public policy, in any such sense as that the courts should refuse to enforce it. Back of tbls argument, and strongly supporting it, 18 'that liberty of contract which courts are strenuous to uphold."
After considering arguments, bMed on what he calls "a purely technical construction" of the statuW, Judge Brewer states:
"I am disposed to rest my conclusion more upon the matter of public policy. And here the history of 1J1surance must he taken into consideration, It is notorious that many insurance companies were rigorous in insisting upon forfeiture8, sOmetimes under very inequitable circumstances, and there was no tittle pUblic clamor by reason thereof. Such clamor prompted many legislatures to interfere, and to seek by legislation to protect what they supposed to be the rights of the insured. Such seems to have been the thought of the Missouri legislature,and it e'rldently intended by its legislation to provide a fixed and absolute rule applicable to all cases,-absolute and universal because if it applied only in the cases where the policies were silent,or, if it could be waived or changed, a child can see that it would protect only so faJ." IlS the in8JIrapce companies were willing. So, though no words of penalty are ,attached, no denial of the right to waive, in fact no words of negation in II.D.y direction, yet it seems to, me fair to say that the, affirmative words of the statute disclose a public policy which no court ought to question or refuse to enforce. Rallway Co. v. l'eavey, 29 KlUL 169. The legislature has by
MUTUAL BEN. LIFE INS. CO. V.ROBISON.
this language declared a rule in respect to forfeitures fu life insurance policies. It has thus establie.hed the policy which it believes should obtain in this state;
and, though sitting on the federal bench, it is my duty to admlnlster the laws of this state in the spirit in which they were enacted, and to uphold both their letter and spirit. It is voluntary with any foreign insurance company whether it shall come into this state to transact business. Coming in, it should be willing to comply with all the statutes as to all business arising within this state, and no court, least of all a federal court, should hasten to release it from this obligation. From these views, and with this feeling, I am constrained, though with grave doubts, to sustain the motion to strike out."
While this case was pending in the supreme court of the United States, on writ of error, the case of Berry v. Indemnity Co. was decided by Circuit Judge Caldwell, (46 Fed. Rep. 439.) In his decision, after holding the contract of insurance to be a Missouri contract, and not a contract of the state in which the home office of the company issuing the policy was located, Judge Caldwell . proceeds (page 441) as to the point we are now considering:
"Corporations are artificial creations, and have no natural rights, and their constitutional and· legal rights, in some respects, fall short of those of natural persons. A state cannot deny to the citizens of other states the right to do business within its limits, but it may deny such right absolutely to corporations of other states, or it may admit them to do busines.'! on such terms and condj.tions as it is pleased to prescribe; .and, when an insurance company of one state does business in another, the laws of the latter prescribing the terms and conditions upon which it is allowed to do business in the stute are obligatory upon it. These conditions may extend to the form and legal effect of the company's policies; and if, in the course of Its business in the state it issuespollcies on the lives or on the property of the citb:ens of the state which contain conditions prohibited by or in contravention of the laws of the state, such conditions are void. Doing business in the state brings the policy within the operation of its laws, notwithstanding the policy may be sigued, and the loss made payable, in another state. In such cases the company cannot, by any contrivance or device whatever, evade the efrect and operations of the laws of the state where it is doing business. Wall v. SocietY,32 Fed. Rep. 273."
Within Ii few days after Judge Caldwell rendered this decision, the supreme court of the United States decided the Wall Case, and same is contained in 140 U. S. 226, and 11 Sup. Ct. Rep. 822, under the title Equitable Life Ins. Co. v. Clements. As to the binding force· of the Missouri statutes, and the stipulations in contract purporting to waive it, the court savs:
panies from inserting in theh' policies conditions of forfeiture or restriction, except so far as the statute permits. '['he statute is not directory only, or subject to be set flside by the company, with the assent of the insured; but it is mandatory, and controls the nature and terms of the contract into which The company may induce the assured to enter. * * * It follows that the insertion in the policy of a provision for a C1ift'erent rule of commutation from that prescrihed by the statute in case of default of payment of premium after three premiums have been paid, as well as the insertion in the application of a clause by which the beneficiary purports to 'waive' and relinquish all right and claim to Any other surrender value than that so provided, whether required by a statute of any state or not, is an ineffectual attempt to evade and nullify the clear words of the statute."
ot insurance policies on lives or against fires, is to prevent Insurance com-
"The manifest object of this statute,
of many statutes, regulating the form
As evidencing the positiveness with which the rule so stated by the supreme court is followed in this circuit, it may be noted that in
Fed.' Rep. 511; TO. C. A. 561, affirmed the decision ofCU;c:mtJtldge Caldwell, asab.ove given. A clause in the policy fu. most unequivocal terms that the policy should become null aAd void' iiin case of self-destruction of the holder of· the policy, whether voluntary or involuntary, sane or insane;" while the MisSouri statute provided that it should be no defense that the insured committed suicide, "unlel)B the assured contemplated suicide at the time he made the auplication for the policy; and any stipulation in the policy to the contrary is void." Judge Shiras, speaking for the court of appeals, says:
"when, therefore, the policy sue,d on in the present case was issued and deliYered to [the assured I in MissoUri. the claUse fOlmd therein touching the liahility for death by sUicide was nugatory, under the provisiOns of the statute;;! of Missol1l'i then in force, provided t11.e policy or contract ot insurance is ot sllch a nature as to be subject to the.section.of the statute in question."
MaYi.1892,' ,the circuit court of ,appeals of this circuit,in Indemnity
'We",.a,re, then" justified in holding that, so far as the Iowa statute above quoted may apply to ,t4e contracts of insurance at bar, the Iowa law is the law which is to :goyern and to furnish the rule of construction, iianything in the application or policy to, the contrary anClthe waiver thereof, as claimed by 'plaintiff; is ineffectual. , , We come, now to the particular facts as proven in evidence touching the two grounds of action urged herein. The evidence shows. an ent4'e absence of any intent or desire on the part of defendant I to (}efraud plaintiff company. While the petition, anq some poirt;ions of the argument on the hearing, allude to defendant as having' intentionally deceived and misled the company into issuing the' policies in suit, I find nothing in the evidence justify.ingstich'statements. 'The' evidence, as presented, relates to but one circumstance or incident as to which the plaintiff claims the answers above quoted of defendant are untrue. The medical examination of defeildantoccmed in March, 1890. The question as to seeking medical advice related .to the preceding seven years, while the' question of spitting, of blood was without limit in the question itself. Buf plaintiff lias attempted to prove and urges but one incident or transaction as proof of the untruthfulness of these answers. This occurrence is shown to have happened in October, 1887. I find such occurrence, as proven, to have been that at that time defendant's wife was confinement, and, as his, office one morning, he was directed by the atten,ding physiCIan to procure some chloroform as. he went to his office,and if during the" day the presence of defendant was needed' at his home theph,Ysician would telephone for him. "the chloroform; and early in the afternoon t1J.epp.ysiciaq·, telephoned defendant to immediately. Defendant wall then at his office, nearly a mile from l;J..is home. He atonee stattedfor his 'horse,whicp. ,he had left standing in a slied near by, but found some one had taken the horse 'out: Hastening to a near-street, he hoped to catch a street car which ran past his residence. No car was in sight. He then started on a run for his
I ' I
MUTUAL BEN. LIFE INS. CO. V. ROBISON.
home, in his eager haste running a couple of blocks, and then walking a block to rest himself and regain his breath, keeping a lookout meanwhile for a car or vehicle on which he might be carried. After having thus proceeded a half mile or,more, and when in a highly nervous and exdted condition, to a point almost of physical exhaustion, in attempting to step upon or over a curb, he tripped and fell. As he rose and started again, he noticed that he expectorated some blood. Not knowing where this blood came from, and being alarmed at the unusual occurrence, he crossed over the street to the office of Dr. Waples, and asked him what it meant. Dr. Waples. told him he was greatly excited, and had him lie down and quiet himself. This blood expectoration soon ceased. Defendant says it was saliva, mixed with blood; and, at plaintiff's question, he attempts to particularly describe it. He also says that in quantity it was "not as much as there comes from the ordinary pulling of a tooth." Dr. Waples accompanied defendant home, where defendant remained a couple of days, his wife meanwhile passing through her confinement. On the second day thereafter, defendant went to his business place, on his way stopping at the office of his family physician, Dr. G. M. Staples, to whom he narrated the occurrence in detail. (The evidence does not disclose why the family physician had not attended the wife, nor is it material.) Dr. Staples carefully examined defendant's lungs, and pronounced them sound and unaffected. On examining the throat he stated to defendant that he found· a scar,. apparently of a rupture in a small blood vessel in the throat, which the doctor then pronounced as the cause of the expectoration of blood; and he assured defendant that the occurrence did not amount to anything; that he "frequently had such cases in his office of perfectly healthy persons expectorating blood from the throat," and for defendant to go on about his business, which defendant did. The evidence, given by defendant, is uncontradicted that never before nor since that time, up to the medical examination, had he ever spit blood, except as he had had a tooth drawn or bit his tongue. His words answering this question are:
"I have spit blood out of my mouth previously to that time. If you mean whether I ever !!!pit blood out of my mouth, whether from the pulling Qf a tooth or biting my tongue, I will answer I have.. If you mean that I hlJ:vfl spit blood coming from my throat, or any of my respiratory organs, or from my stomach, I wlllanswer that I have not."
The facts relating to this occurrence have thus been stated somewhat in detail, as I find them from the evidence, as some evidence was introduced tending to show'a state of physical exhaustion of defendant immediately followed this occurrence. This exhaustion is to me not surprising, succeeding, as it did, immediately after the severe physical nervous and excited efforts of defendant to reach his home as speedily as possible with the chloroform, and under the peculiar circumstances under which the effort was made. .But I find no statement in substantial contradiction as to the oc· currence as I :have givenit; .and the testimony of Dr. Staples, as to his part in the matter, is in substantial accord with defendant's statement. . The .medical ,examiner of the plaintiff company who
cOllducte'd the eX8Jl1in.atioll of defendant, ,and wr9te the answers to which the plaintiff now objects, U!l the sll.IX1eDr. Staples who had been' the, fatnily .physician of defendant for, many years, and who is referred to in the above of, the occurrence. According· to the; testimony of Hplden, (medical director of plaintiff,} Dr. Staples had been since 1865 the medical examiner at Dubuque for plaintiff. 1 find further f!'Om the evidence that at the time of such medical examination of defendant for insurance from plaintiff, on March 17j 1890, when the questions to whose answers, as written in the .application, plaintiff now excepts, were propounded to defendant by Dr. ,Staples, defendant recalled to the examiner the particularS of the occurrence, above stated, and again related them to him;, that defendant then appealed to the examiner to know what was meant by the terni "spitting of blood," and whether 'the term included this occurrence; that the examiner stated to him that the term did not refer to or include, as used in the application, such an occurrence, 'but, as there used, meant "the raising of -blood from. the, lungs or bronchial-tubes,-diseases supposed to be the. :precursorof consumption;" 'and that said examiner said the proper answer was, "No/'and he then directed that answer to be written as 'the same a.ppeal's on the application. (Owing to the examiner, being then afflicted with "writer's cramp," his son wrote, at his dictation, the answers.) The testimony of the examiner on this point is as follows:
"ID.teJrogatory 38. State what was said: An.'lwer. I f>xplained to him that thlsquestion. 'Spitting of'blood;' WlL!l in my judgment, as medical examiner fOr the company, (it was-put there for the purpose of determining whether there ,was any evidence. ot consumption,) the question could not be if you meant spitting of blood from the mouth. Probably n0J;lerl!on living but what:hlL!l spit blood on some oCClL!lion when a tooth hlL!l been extracted, or after· having the nose bleed. Spitting of blood did not mean th.!!.!, It meant as evidence of hemoptysis or diseases of the pulmonary '
Iftirlher ihid from" the evidence that, when the question with reference to havings()ught 'medical advice was asked defendant, he· ,stated to: the medical ex:aminer that except the one time when deconsulted Dr. Waples, as above narrated, he had sought (the examiner,) and that he no medical advice except from (the examiner) knew more about that than defendant did; that after some talk between them, and the consultation of the exam· iner's books, (wherein he kept his accounts for medical services rendered,) the examiner stated to defendant that the question did not refer to every slightnmtter on which a physician's advice had been sought. Here, also, the testimony of the examiner may properly be given:
"Interrogatory 58. Do you remember what WlL!l said when the eleventh question·Was'lL!Iked Mr. Robison,-'Forwhat have you sought medical advice during t;b& li1Bt seven. years?' Answer. My recollection is that he said to, me that.l.had llttended Wm during the 7 years, and, that I could answer for him:, I cOUld' tell about wb8.t he had sought medical advice for. Int. 59. Did, yon makE! ltn' ex.amiIuttidn o't the books at 'the time to see whl\ t he had consulted : ;A. il do not recollect whether I made the examination or not. Thad jn,lU1ad ..boutwhat I bad treated;bim for. Int.60. State whether you;
MUTUAL'REN. LIFE INS. CO. II. ROBISON.
talked over with hlm at tbat time, and tried to determine what you had treated him tor. A. I think I did. Int. 61. State whether he lett the IlIlSwer to that question to you or not. State what Mr. Robison did in relation to the IlIlSwer to that question. A. We talked over what we prescribed for him, and I think this was the result we came to as to what had been his trouble. Int. 62. State whether it was the result you came to as well as he. A. I said, 'We,'''
On cross-examination the following occurs:
"Interrogatory 11. If you attended Robison within the time you stated, in 1888 and 1889, Why did you not remind him of that fact when he answered question 11? Answer. I cannot answer that without a sort of an explanation. Mr. RobIson came to our office quite frequently, complaining of some trivial illness, which was largely in his imagination. He is rather cowardly when he is sick or thfnks he is. He imagines he has all the illnesses that the human family is heir to. He came to my office frequently, and I could find no trouble that would be worth reporting, and I did not think it necessary to number up all the details of all these little trivial matters that he complained ot. That is perhaps an explanation. Int. 12. State it you explained this to Mr. Robison. A. I did. · · · Int. 14. So, in your opinion, these times in 1888 were not of enough importance to appear in IlIlSwer to this question. A. Most of these times I regarded as SUCh. Int. 15. You have stated that Mr. Robillon came frequently. Would he not on a good many of these occasions simply come to have his truss adjUSted, or ask about that? A. He came to me sometimeS to have his truss adjusted. Sometimes he would want a new truss. Sometimp.s he would ('ome to talk. about an operation, so that he would not to wear a truss. Sometimes he would complain about something wrong' about his heart. I would make an examination, and find nothing wrong about his heart; and he would consult me about little trivial matters, that I did not regard as of enough consequence to write out a volume of and send to the hOme ofllce. Int. 16. You so informed him when this question No. 11 was asked him? A. I informed him that I did not think it necessary."
I further find from the evidence that, at the time this medical examination was made of defendant by Examiner Staples, plaintiff's agent Brayton and Sta.te Agent McAvoy were. at the examiner's office. That after Dr. Staples had completed the persopal examination, and he and defendant had come out from the pri"Vate room in which the examination had been held, defendant met Brayton and McAvoy. That conversation was had between them as to defendant's insurance. That it was then understood defendant was to take $5,000 insurance only. That, in the course of the conversation, defendant narrated to the state agent, and in presence of Agent Brayton and the medical examiner, the occurrence above narrated as to the spitting of blood, and his consultation of Dr. Waples about it; and that he had, very shortly after, related the occurrence to Dr. Staples, and had been then examined by him with reference to it; and that, under Dr. Staples' explanation of the term. "spitting of blood," he had answered to the question, ''No;'' and that the state agent then said to defendant, (I now quote from the testimony of Agent Brayton:)
"McAvoy !laid: 'Dr. Staples has explained to yOlL You are perfectly right in so lltating it, liS the qnestion moons, "Did you ever have spitting of blood from the lungs;" and where you have apparently answered the question wrong, under the meaning of the question, it is right, as Dr. Staple$ explained to you. this is one question we have settled sati8factorily with 'Dr. Staples;' and it was settled satisfactorily to Mr. Robison. I do not remember if there waillUlythiug el"e Ilrtid on the subject. I have this in my mind because of the tact that I had heard that Mr. Robison had had hemorrhage."
....;.And that, after the talk between the agents and defendant in which the foregoing occurred, the ,state agent induced Mr., Robison his applicatio;n for insurance in the plaintiff company from $5,000 (the amount he;had intended) to $20,000, (the amount of the policies in the suit.) 'The testimony of the plaintiff's medical director Holden shows that McAvoy was state agent for Iowa for plaintiff. Holden disputes the 10caJ agency of Brayton; but that is overthrown, and the contrary proven, by the original application pr0duced by plaintiff, whereon appears the certificate and recommendatio,nfJ of defendant's application for insurance as made to plaintiff,and of , . Here,then, we have a casein which the applicant not only has not conceaJedanyfacts with reference to himself, but has with special minuten..,essp:ut pbtintiffls.agents-Ioeal agent, state agent, and examiner"7"':"4:L po's'session of all the because of whose omission in the written application plaintiff now seeks tQ avoid the policies it has: issued to defendant. In this entire transaction defendant appears to towards plaintiff company with the utmost good .. ,'The'evidellce' to sustain any inlputation tltat in any particular defendant impose on, plaintiff. A businessman himself, defendant seems to have been unusually careful that all the tams' touching ,the matters referred to in the application should be. fully, and mimitely inili,e' possession.of' plaintiff's agents. Indeed; the evidencE!'shQWs not 'satisfied during the progress of the examination with ,the answer,. ''No,'' as the examiner had directed it 'to be written,but'called the examiner's attention to it; and, whe:q: the! e:x;amine:.r tltat ,he could not make. any otller answertp question, clE!tendant asked the e*awiner if he could not malq:t company a hetter a;nswer, than the words in the answer in the applicl1tion; ,and ,that Dr. Staples replied he did not think it necessary, put ,that he could wvite on the margin of his examiner's report to the spitting, or would write a letter to statinghowdefendl1nt came to spit ,blood, and when and where,. and th l1t he Jl,adexamined d.efendant's throat and lungs two and that he had given them a thorough examination, in, his opinion, the blood spitting .was a trivial matter. rrb,atnq letter was thU\? ,written with these promised contents is not chargeabhtto the defendant, .nor can its absence su:;;tain any imputation of "Qadfaith, on his part. This absence is perhaps to be accounted, fgr in the fact developed in Dr. Staples' testimony that, after defendant had concluded to' increase the amount of his insurance, tlle' Q.octor took fUrther time, and more thoroughly performed exaIllination, and was thereby plore thoroughly impressed with the desirability and safety of the risk; hence he might readily have th,e letter to be,more than ever unnecessary., ,The supreme court of Iowa hasin various cases giv:en its construction tothelowa statute above quoted. In Cook v. 'Association, rr4Iowa, 746, 35 N. W. Rep; 1500, that court· has declared that, this statute applies to life, as "ell a,lsftre, insurance;. and in Insurance Co. v. Sharer, 76 Iowa, Rep. 19, that court, speaking of ,the same statute, has declared: ! .'
MU'fUAL BEN. LIFE DfS. 00. fl. ROBISON.
"The purpose of the statute was to settle n.s between the parties to tho contract of insurance. the relations of the agents through whom the negotiations were conducted. Many insurance companies provided through their applications and policies that the agent through whom the application was procured should be the agent of the assured. Under this provision they were able to avail in many casps of loss. of defenses which wonld not have been available if the solicitor had been reg:trded as their agent, and many of apparent hardship and injustice arose under its enforcement; and that is the evil intended to be remedied under the statute, and it ought to be so interpreted as to accomplish that result."
un will be conceded that the agent was a soliciting agent only, and that he had no power to bind the defendant by any contract he might take. But he made no contract. All that he did was to solicit insurance, and fill up a blank application furnished him by the company. Where an insurance company ap. points an agent to solicit insurance, and furnishes him with blank applications, it must be assumed that he is vested with the power to fill up the applications in accordance with the information furnished him by the applicant; and such Is the usual practice. For this purpose he Is the agent of the company, and If., instead of obtaining tll(' requisite information of the applicant, he obtains it from others, or fills up the application in accordance with his own knowland inform::ttion, and thereon a policy is issued by the company, and . the premium paid by the applicant, the company Is bound by the statements contained ill the application, and the accu8('d Il'l not, in the absence of fraUd. It will be conceded that tlle defendant, when It Issued the polley, believed that the plaintiff had furnished the information contained in the application; and that, It it had known the facts, it would not have entered into contract of insurance. But tWs is immaterial, because the deception was practiced by tt8 own agent, and not by plaintiff'. "
And the court cites a number of decisions of the court as sustaining the point now stated. To the second point above stated, thE:" court say:
"Counsel are mistaken In the assumption that parol evidence was introduced for the purpose of contradicting the written contract. The force and effect of the statements contained In the application fire in no respect impaired, but, under the circumstllnce!l di!lclosed in the evidence, the defendant is estopped from setting up their falsity as a defense to this action."
In 1886 the Iowa supreme court, in Donnelly v. Insurance Co., 70 Iowa, 693, 28 N. W. Rep. 607, considered a case where the application for insurance gave the cash value of the building to be insured at $8,000, its erection as in 1872, and the additions thereto as in 1880. The facts, as specially found by the jury, were that its value waa $2,000, its erection was in 1844, rebuilt in 1865, and additions made at a later date. The jury further found that the application blank was signed in blank by the plaintiff, and then left with the company's agent, who, on information gained by him, on investigation and from 1a10wledge, wrote the answers to the questions. The com, panycontended that, the statements (warranties) being false, plaintiff could not recover, and the evidence to show that the answers were tined out by the agent, and the manner of such tilling out, was incompetent, as varying by parol a written contract. To the first point the supreme court say:
The supreme court of Iowa, in Hagan v. Insurance Co., 81 Iowa, 321, 46 N. W. Rep. 1114, applied the Iowa statute above cited to a case where the.· soliciting agent of the insurance company prepared several applications for .plaintiff in various companies, inv.54F.no.4-38
eluding defendtl,nt company, of which this: solicitor was agent, all upoh. the .same property;.' The assured stated to the agent the gross amount of insurance he desired to carry, and the agent distributed it among the various companies. In the policy in suit the agent entered in the application a statement of concurrent insurance greatly below the actual a:lIlount. The court, announcing the rule obtaining in Iowa in the application of the statute to these facts, hold the policy to be effective, and say:
"The company, being charged with the knowledge of its agent, must be considered as having knowledge of the amount of insurance applied for; and, having lsSlWd this policy with this knowledge, will be deemed to have waived the condition against concurrent insurance beyond the sum named."
Key v. Insurance Co., 77 Iowa, 174, 41 N. W. Rep. 614, is a case having some features in common with case at bar. Key had bought pl'operty on which was situated a dwelling house then occupied by him. He held but a title bond for the premises. When the application for insurance Wlul being made out, Key stated these facts fully to the soliciting agent, who then said to plaintiff, "That did not tell in the policy," but further informed plaintiff that, if at any time he desired to borrow money on the place to complete the payments on it, he would have to get permission from the company before makiyg this loan. The application stated that plaintiff was the sole owner of the premises, and that the same were unincumbered. The application also contained the usual provision making all statements warranties, and avoiding policy if any statement was untrue, etc. In upholding an instruction to the effect that, if the soliciting agent was thus told truthfully the facts relating to plaintiff's title, then his knowledge would be the knowledge of the company, and the company, in issuing and delivering the policy, would be held to have waived any misstatements in the application, the supreme court say: "In takiij.g the application, the agent acted for defendant company. Therefore it is chargeable with knowledge of the facts made known to the agent at the time!' And judgment on the policy is sustained. Further reference to cases adjudged by the Iowa supreme, court would seem unnecessary; but it may be noted that the, Iowa ,decisions are uniform as to the construction of this statute. , Applying the Iowa statute, as thus construed, to the facts by this court found and above stated, we are brought to the inevitable conclusion that, in the matters relating to and connected with the examination of defendant and the application for insurance herein, Agent Brayton, State Agent :McAvoy, and Medical Examiner Staples were the agents of the plaintiff company, and that the statements made known to them by defendant, as above found, were thereby made known to, and became the knowledge of, the plaintiff company; so that, when the poHcies in suit were issued to defendant, the company must be held to have waived thenonstatements in the appliclttion of which it has herein complained. But counsel for plaintiff insist that the doctrine of Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. Rep: 837, is applicable to the case at bar, and entitles plaintiff to a decree of cancellation. On
examination of that case, it will appear that the facts therein involved, and with reference to which the decision therein rendered must be read, differ materially from the case at bar. The previous decisions of that court, as rendered in Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152; and Insurance Co. v. Baker, 94 U. S. 610,-had strongly asserted the doctrine that, where the applicant had no knowledge of any limitations upon the agent's authority, insurance companies, acting through agents at a distance from the home office, were bound by the acts of these agents, within the general scope of the business intrusted to them; and when such agents prepared the application wherein the statements are made warranties, and where truthful answers were given by the applicant, but the agent inserted other answers therein, that, even though the applicant signed the application, he was not estopped from showing the actual facts of the occurrence, since the applicant had .the right to assume that the answers as thus written had the meaning for the purpose of obtaining the policy of what the agent stated them to be; and that if the agent attempted to construe and interpret the applicant's answers, and inserted his construction and interpretation of them instead of the answers themselves, the company, and not the applicant, would be held responsible therefor, as having prepared the application, and, though the applicant signed it, this would not defeat the policy. In the Fletcher Case, on the contrary, there was brought directly home to the applicant the limitation which the company had placed on the powers of its agents; for the application there signed expressly notified the applicant that as only the officials at the home office have authority to determine whether a policy shall issue on any and as they rely only on the written statements and representations referred to, no statements or representations made or information given to the persons soliciting or taking the application for the policy should be binding on the company or in any manner affect its right unless they were reduced to writing, and presented. at the home office in the application. And the policy in that case was overthrown, on the expressed and special ground that, under this provision of the application, no statements which the applicant had verbally made at the time the application was made out and signed could be received to affect the application as signed and sent to the home office, and therefore the untrue statements (warranties) therein, by the terms of the contract, rendered the contract of insurance void. What would have been the effect upon the Fletcher Case if that case had arisen in Iowa, and the attempt was made to apply the Iowa statute to it, we do not find it necessary to inquire, for the Fletcher Case and case at bar are otherwise distinguishable. as we have just seen. In Sawyer v. Insurance Co., 42 Fed. Rep. 30, will be found a clear and forcible presentation of the distinguishing points between the Fletcher Case and those preceding it, (which I have named above,) and conclusively showing that the Fletcher Case does not overrule its said predecessors. In the case at bar I find that there is no evidence that defendant had any knowledge of any limitatiol1,if such limitation existed; upon the powers of the
company's said agents within the scope of the business by the plaintiff company intrusted to them. The case of Insurance Co. v. Chamberlain, 132 U. S. 304, 10 Sup. Ct. Rep. 87, is largely decisive of the case at bar, and much of its reason· ing is directly applicable herein. That was an action upon a policy of life insurance, wherein was involved the Iowa statute above quoted. The company's agent, in taking the application, had answered the question relating to whether the applicant had other insurance upon his life, by writing the words "None other." In fact the applicant at that date held insurance in co-operative insurance companies to the amount of $12,000. The answers were by the contract made warranties, and their falsity avoided the contract. The company resisted payment because of this false answer. The evidence showed that the applicant had, in response to this question, truthfully and fully informed the agent of the amount of co-operative insurance he was rying, and that the agent had declared that he did not .regard, nor did the company regard, such co-operative companies as insurance compa.nies, so that the applicant did not, therefore, really hold any insurance whatever· at that time; and relying on the construction given by the agent, and nnder his direction, the applicant had signed the application with the words therein to which the company objected. One of the provisions contained in that application is as follows:
"And it Is hereby further covenanted and agreed that no statements or l'eprpsentatioD$ made or given to the person solicitingtbis application for a policy of insurance, or to any other person, shall be binding on the said company, unless such statements or representations be in writing in this applica.tion when the said application is received by the officers of the said company at the home office of the said company, in Hartford; Conn."
Having quoted this Iowa statute, the supreme court of the United in applying that statute to the case in hand, say, (page 310, 132 U. S., and page 89, 10 Sup. Ct. Rep.:)
"TIle statute was in force at the time the policy in suit was given, and therefore govei.'ns the present case. It dispenses with any inquiry as to whether the application or the pOlicy, either \-,xpressly or by implication, made Boak the agent of the assured in taking the application. He could not by any act of his shake off the character of agent for the company. Nor could the company by any provision in the application or policy convert him into an agent for the assured. If it could, then the object of the statute would be defeated. In his capacity as agent for the insurance company, he had filled up the application,-something which he was not bound to do, but which service, if he chose to render it. was within the scope of his authority as agent. If it be said thl1t, by reason of having signed the application after it had been prepared, Stevens Is to be held as having stipnlated that the company should not be bound by his verbal statements and declarations to the agent, he did not agree that the writing of the answers to questions contained in the application should be deemed wholly his act, and not in any sense the act of the company by its authorized agent. HIs act in writing the answer which is alleged to be :untrue was under the circumstances the act of the company. If he had applied in person to the home office for insurance, stating, in response to the question as to other insurance, the same facts communicated to Boak, and the company by its principal offiCer, authority in the had thElll written the answer, 'No other,' telling the applicant that that was the proper answer to be maq.e, it could not be doubted that the company would be estopped· to say thatinsumnce in co1operative companies was insurance ot the kind the questioD. referred to. and ,,,,bout which It information
before consummating the The same result must follow where negotiations for insurance are had, under li,ke circumstances, between the assured and one who in fact, and by force of the law of the state where such negotiations take place, is the agent of the company, and not in any sense an agent of the applicant. · · · In view of the statute and of that understanding upon the faith of which the assured made his application, paid the first premium, and accepted the poliey, the company is estopped by every principle of justice from saying that its question embraced insurance in co-operative associations. The answer, 'No other,' having been written by its own agent, invested with authority to solicit and procure applications, to deliver policies, and, under certain limitations, to receive premiums, should be held as properly intel"preting both the question and the answer as to other insurance."
The subheading of that part of the application in the case at bar, wherein is contained the answers to which plaintiff herein excepts, is as follows:
"The answers to the queetlons on this page must be written by one of the examiners. (Note. 'I'he examiner will ask the person to be insured the .following questions. and will see that tile answers are free from ambigu· Ity, and that disensesare from mere symptoms.)" etc.
As bearing on the possible force of this direction of plaintiff, which imposes on the medical examiner the duty of determining what answers are proper answers to be written in the application to the questions propounded to applicant, the following extract from Chamberlain's Case, supra, is highly instructive:
''It i'l true th:n among the 'Provisions and Requirements,' printed on .the back of the policy, is one to the effect that the contract of the parties is completely set forth in the policy and application, end 'none of its terms can be waived except by an agrellluent in writing, signed by the president or secretar,1 of the company, whose authority for this purpose will Dot be delegated.' But this condition permits-indeoo, reqUires-the court to determine. the meaning of tl'c terms embodied in the contract between the parties. The purvort of the '\Yord 'insurance' in the question, 'Has the said party any other insurance on his life?' is not so absolutely certain as in an action on the policy, to preclude proof as to '\Yhat kind of life insurance the contracting parties had In mind wh8n that question was answered. Such proof does not necessarily eontradict the written contract. Consequently the above clause, printed on. the back of the polic:r, is to be interpreted in the light of the statnte and of tho understanding reached between the assured and the company by it!! agent when the application was completed, namely, that the particular kind of insurance inquired about did not include ihsurance in co-operative societips."
In the case at bar, the facts with reference to the questions propounded were fully and truthfUlly made known to the agents of the plaintiff company, and the answers written were written by such agents and assented to by defendant's signature after the intent, purpose, and scope of the questions had been announced by plaintiff's said agents. Defendant's manifest good faith in the matter, his sincere and persistent attempts to have the facts fully and truthfully presented to the company, and his reliance on the construction given to the questions propounded as the same were construed for him by the agents, bring the case at bar within the reasoning of the Chamberlain Case. Lastly, counsel for plaintiff insist that the ruling idea underlying the Wilkinson, Mahone, Chamberlain, and similar cases is that, as . the companies have .during the lifetime of the assured accepted the premiums, and the. assured has relied during h,is lifetime on the
indemnityicontract provided. in the policies, the ..company, atter· the in occul'ied, are estopped,tiom avoiding the.P9licy; to use the language of the Nort40arolina supreme court, in Bergeron v. Banking Co.,158, E. Rep. 883, this "would be to lend the sanction of the law to a palpable frap-d."· And thereupon the argument o(counsel foUows:
"In thei(lase at bar the company has tendered back the premium without dell\Y, and during the life ot. the policy holder, and is seeking to restore him, as well as the company, to his or1gl.nal condition."
It may be pertinent here to notice that' the evidence shows, and the arguments at the hearing conceded, that defendant was at the institution of this action in such physical condition that he was no longer an insurable risk; that is, he could not then present such a physical condition as would be requisite to enable him to obtain desirable insurance upon his life in any company. So far as defendant is concerned, his condition, looking at his insurance alone, could scarcely have been brought more forcibly withiil the reasons on which plaintiff claims the doctrine of estoppel rests. . Let decree be entered finding the equities with defendant, and dismissing bill herein, at plaintiff's costs.
OENTRAL TRUST CO. OF NEW YORK v. CmCAGO, K. & T. RY. 00., (HOLTON-WARREN LUMBER CO., Intervener.) Court, W.D.Mlssouri, W,ID. 1.
or after the materials are furnished," stich lien must be flIed within 90 days the last item furnished under each separate contract.
to be 6led "within ninety daYs Dp.xt after the completion of the work,
Upder Rev. St. Mo. § 6743, requiring a mechanic's lien against a railroad
Where sep8J,'ate orders tor entirely different kinds of material are given, about.a month. apart, for railroad supplies, such orders are separate (lonfracts; and, in order to obtain a mechaIlic's lien under the above act, separate, itemized accounts must be fiied within 90 days from the date of the last item furnished under each order.
furnish some material after the statute has run against the last preceding item.
4. SAME-RAILROAD CONSTRUCTION. Under Rev.. St. Mo. § 6741 et seq.,
Where a contractor bas so far abandoned the prosecution of his work as to allow the statutory period to against the filing of a mechanic's lien, he cannot, sua sponte, for the mere purpose of securing a lien,
giving a mechanic's lien for materials furnished to a railroad company, it. 1s not necessary to show that the materials were incorporated in the construction of the road. Where a railroad company is in the hands of a receiver, and· being operated by him, he alone 1s It necessary defendant in an action to foreclose a mechanic's lien under Rev. St. Mo. § 6747, which provides that any person or corporation "owning or operatLng" the railroad shall be made a party to such proceedings.
In Equity. Bill by the Central Trust Company of New York, against the Chicago, Kansas & Texas Railway Company to foreclose