Ala. Gold Life Insurance v. Garner

CLOPTON, J. A mistake, and by whom made, are facts to which a witness may testify, if within his knowledge. The fact of a mistake, and knowledge of the person by whom made, are essential to the relevancy and admissibility of the evidence. It is the appropriate office of the jury to draw the conclusion as to the fact of a mistake, and as to the person who committed it, from the circumstances proved, where the witness does not know, as a fact, that any mistake was committed. The answer of the witness, Carter — -“If any mistake was made in her age, it was made by me,” — is the mere conclusion or opinion of the witness, based on the mere supposition of a mistake, and should have been excluded. It is competent to prove the facts and circumstances attending the making and preparation of the application of insurance, but the conclusion therefrom must be left to the jury.— Whizenant v. State, 71 Ala. 383 ; Perry v. Graham, 18 Ala. 822. 2. The action is brought on a paid-up policy of insurance, [215] issued in January, 1877, which was based on a former policy issued in October, 1872; and contains the following provision : “ This policy is issued and accepted upon the following express conditions and agreements: First — That the answers,-statements, representations and declarations, contained in¿ or indorsed upon the application on which policy No. 3346 was based — which application is hereby referrrd to, and made apart of this contract — are warranted to be true in all respects: and that if that policy was obtained by or through any fraud, misrepresentation, or concealment, or by any false statement, then this policy shall be absolutely null and void.” The matter of contestation on the trial in the Circuit Court was an alleged untrue statement of the age of the assured in the application for the first policy, and in her declaration made at that time. In the application, her birth-day is given as January 18th, 1835, and her age as thirty-eight at the next birth-day; and in the declaration, she declared that her age, at the time of making her application, did not exceed thirty-eight years. Under what circumstances representations, which form a part of the contract of insurance, acquire the character of warranties, when not so expressly declared, it is not necessary for us to consider. In the policy sued on, there is an express warranty of the truth of the answers, statements, representations and declarations, contained in, or indorsed upon the application on which the first policy issued, which are made a part of the contract. While warranties are not favored, and will neither be created nor extended by construction, when a warranty is expressly, and in terms declared, its stipulations and conditions must be strictly complied with. The question is disembarrassed of any consideration of materiality, the parties having made it material by their agreement. — Jeffries v. Life Ins. Co., 22 Wall. 47; Aetna Life Ins. Co. v. France Ins. Co., 91 U. S. 510. A misrepresentation as to age, however, is material, it being the basis on which the amount of premium is established. May on Ins. § 305. 3. It is insisted, that as the agent of defendant wrote and prepared the application, it is nct'the statement or warranty of the assured, and the plaintiff is not bound thereby. 'The proposition of counsel would be correct, if it were shown that the insured did not make the answer, and did not know she was doing so when she signed the application; and that the agent, who solicited the insurance, wrote the answer from his own judgment, or from information received from others; or if it were shown that true statements were made, and the agent substituted others, that were untrue; in other words, any facts showing that the answers, statements, or representations complained of, were those of. the agent, and not of the assured, [216] Ins. Co. v. Wilkinson, 13 Wall. 222; Ins. Co. v. Mahone, 21 Wall. 152. But the fact, without more, that the application was written by the agent, from a memorandum of the answers of the assured, it having been afterwards read to and signed by her, does not constitute them the answers or representations of the company. They are in fact, and in law, her answers and representations. 4. No doubt, mistakes sometimes occur, made either by the applicant, or by the agent. If made by the agent, the company will not be permitted to take advantage of the carelessness, inadvertence, or misunderstanding of its own agent, and avoid the policy, the insured being without fault. On the other hand, if' the assured made the mistake, the plaintiff will not be allowed to show her mistake, though committed from inadvertence, carelessness, or ignorance, to the detriment of the company. She warrants against her own mistakes in the answers and representations, on which the company acted in issuing the policy. If, therefore, the assured made an untrue representation of her age, whether intentionally or by mistake, the policy will be vitiated. Whatever statement she warranted must be true, as on its truth the validity of the policy, and the liability of the defendant, are dependent. On the claim of the plaintiff, that her real answers and declarations were true, but that a mistake was made by the agent in .writing the application, it is incumbent on him to establish both the mistake and its commission by the agent. As appears from the record, Carter, who was examined by the plaintiff, was the agent who took the application at the store of the plaintiff, which was a small building, and when several others were present making applications; a memorandum was made of the answers to the various questions, as they were severally and successively asked ; from this memorandum the agent filled the blanks in the application, at the residence of the plaintiff, where he had a room ; afterwards, Mrs. Monday, with others, came to the residence, when the application was read to, and signed by her; and while the witness does not remember what Mrs. Monday said to him about her age, he stated that he intended his memorandum to be truthful, and to follow it. Other than the evidence of this witness, there is no evidence tending to show a mistake on the part of the agent. His testimony does not show that the memorandum was incorrect in any particular, or that he did not correctly fill the blanks in the application. On the foregoing principles, and the uncontradicted evidence, the court should have given the general affirmative charge requested by the defendant. It is unnecessary to consider the other instructions requested and refused. [217] 5. The general issue, and a special plea in bar, having been filed, and a trial had on the merits, without objection being made, by plea or otherwise, to the right of the plaintiff to sue in the capacity of trustee, it is too late to raise the question in this court for the first time. Reversed and remanded.