Marche v. New York Life Insurance

—Action for damages sustained by plaintiff because of fraud alleged to have been practiced on him by defendant, a life insurance company, through the instrumentality of one Eaton, its agent, whereby defendant obtained from plaintiff his negotiable promissory note for the sum óf four hundred and thirty dollars and fifty cents, ostensibly in payment of the first annual premium on a policy of insurance to be issued on his life, which note plaintiff was subsequently compelled to pay to a third person holding the same. At the trial defendant moved for judgment of nonsuit on the evidence produced by plaintiff, and the court granted the motion.

It is not contended in this court by the defendant that, the evidence was insufficient to show fraud in the representations by which Eaton, the agent, obtained plaintiff’s note, but it is urged that for certain reasons, to be presently noticed, the plaintiff is in no position to hold defendant responsible on that account. Among the facts which the evidence tended to establish were the following: Plaintiff is a farmer by occupation, a foreigner by birth, unacquainted with the technical terms of life insurance, and accustomed to rely on other persons for the

1. Defendant contends that by signing the blank application and delivering it to Eaton plaintiff made Eaton his agent to-complete the same, and thus assented to the terms which Eaton saw fit to insert. We do not understand this to be the law in-cases such as the present; the blank form was such as could be intelligently filled only by one possessing some skill in the technology of life insxxrance; for example, it required an answer to the question whether the insured desired "an accumulation policy with guaranteed cash values as set forth in the policy-form of the company”; plaintiff neither knew nor assumed to know the meaning of these terms; presumptively, Eaton possessed the requisite knowledge, and there is no doubt that the preparing of the application was within the scope of his authority as agent for the company (Continental Ins. Co. v. Chamberlain, 132 U. S. 304 , 311; Aetna Ins. Co. v. Olmstead, 21 Mich. 246 ; 4 Am. Rep. 483 ; Donnelly v. Cedar Rapids Ins. Co., 70 Iowa, 693 ); his act in filling the instrument over the signature of plaintiff was therefore the act of the company, and fraud by him in the performance of that act, to the injury of plaintiff, must be treated as the fraud of the company. This conclusion, which, as will appear, is virtually decisive of the case, is fully supported by the decisions on the subject. (Wheaton v. North British etc. Ins. Co., 76 Cal. 415 ; 9 Am. St. Rep. 216 ; Hingston v. Insurance Co., 42 Iowa, 46 ; Fitchner v. Fire Assn., 103 Iowa, 276 , 279; Swan v. Insurance Co., 96 Pa. St. 37 ; Dowling v. Insurance Co., 168 Pa. St. 234 ; Rowley v. Insurance Co., 36 N. Y. 550 ; O’Brien v. Home Benefit Soc., 117 N. Y. 310 ; Massachusetts etc. Ins. Co. Eshelman, 30 Ohio St. 647 ; Farmers’ Ins. Co. v. Williams, 39 Ohio St. 584 ; 48 Am. Rep. 474 ; Kausal v. Insruromce Assn., 31 Minn. 17 ; 47 Am. Rep. 776 ; Bowlus v. Insurance Co., 133 Ind. 106 .)

2. The provision of the application that the company should not be affected b3r statements or promises made 'by or to the-agent unless the same were redxxced to writing and presented in the application can be of no avail to defendant on the facts

3. Defendant seems to place most reliance on the circumstance that the plaintiff’s wife, who was named as beneficiary of the insurance, did not join in his offer to surrender the policy. It is claimed that her failure to do so is fatal to plaintiff’s-action, and that Jurgens v. New York Life Ins. Co., 114 Cal. 161 , settles the question in defendant’s favor. The ground taken in that case was that since the beneficiary—there, as here, the wife of the plaintiff in. the action—had a vested interest in the policy, the husband could not, without her concurrence, rescind the contract evidenced by that instrument. The case before us differs from that in some essential particulars. The wife of La Marche never acquired an interest in the policy defendant issued to her husband. Aside from any consideration of fraud in the procurement of the application, it seems to us doubtful whether, in view of the provision that the right to change the beneficiary of the insurance at any time was reserved to La Marche, the beneficiary first named could be said to have a vested interest in the policy in any sense that would prevent her husband from disposing of it as he pleased. (See Splawn v. Chew, 60 Tex. 532 ; Block v. Valley Mut. Ins. Assn., 52 Ark. 201 ; 20 Am. St. Rep. 167 ; 2 Joyce on Insurance, sec. 730.) We do not, however, venture an opinion on that question, for this case is for other reasons without the rule held in Jurgens v. New York Life Ins. Co., supra. There the court said: “The policy issued to him [Jurgens] was precisely such a policy as he' had applied for in writing”; and the opinion of the court was-influenced throughout by the fact that Jurgens really assented to the contract which he subsequently assailed, although his as

It follows that plaintiff never applied for the policy which defendant assumed to issue, and, of course, his wife could have no vested or other interest in a policy which he did not accept nor agree to accept. It was error to grant the nonsuit, and the judgment and order denying a new trial should be reversed.

Gray, C., and Chipman, C., concurred.

Harrison, J., Garoutte, J., Van Dyke, J.

Hearing in Bank denied.