Bernard v. United Life Insurance

This action was brought to recover $1,000, on a policy of insurance issued on the life of Elizabeth Kelly by the defendant, payable to the plaintiff. The answer is entirely affirmative. The defense is based upon alleged breaches of warranty by Elizabeth Kelly of the truth of statements made by her in writing and,upon which warranty the policy was issued. The case was tried before court and a jury. The plaintiff, after rebuttal, rested, whereupon defendant’s counsel moved that the court direct a verdict for defendant. Motion denied. Exception, and then moved for a dismissal of the complaint. Motion denied. Exception, the court saying: “ I shall submit to the jury the question whether the representations were known to the insured to be false at the time they were made.” At the close of the testimony defendant’s counsel renewed the aforesaid motions, with like denials and exceptions. The court thereupon charged the jury, and to which charge the defendant’s counsel took the following exceptions: First. To that part of the charge wherein it is charged that Elizabeth Kelly must have known her statement to be false before the jury can find for the defendant. Second. To that part of the charge wherein it is charged that if Elizabeth Kelly did not know she had been rejected the company is liable. Third. To that part of the charge wherein it is charged that if plaintiff relied on the statements made by the company or its officers, and which were made after the issuance of the policy, even although those statements were not in writing or signed by the officers, plaintiff can recover. The plaintiff must stand or fall on the contract or policy and the applications which form part thereof and are in evidence. By these, the plaintiff agreed that the answers and statements in this application whether written by the applicant or not, are warranted to be full, complete and true,- and that this agreement and the constitution and by-laws of the association, with the amendments thereto, together with this application, are hereby made part of any policy that may issue hereon. That if any of the answers or statements made are not full, complete and true, or if any condition or agreement shall not be fulfilled as required by such policy, the policy issued hereon shall be null and void, and all money paid hereon shall be forfeited to such .association. That the person soliciting or taking this application, and also the medical examiner, shall be agents of the applicant as to all statements and answers in this application. This, then, made the person soliciting and taking this application, the agent of the applicant as to all statements and answers contained in the application and binding on the insured, and any untrue or false statement or answers made by him must bind and control her liability in accordance with the terms of the contract. Elliott v. Mut. Ben. Life Assn., 76 Hun, 378 ; 59 St. Rep. 139 . Whether she personally knew them to be true or untrue is immaterial. His acts were the acts

Ehrlich, O. J., concurs.