Insurance Company v. Mahone

Mr. Justice STRONG delivered the opinion of the court. That there is no substantial reason for complaining of the ruling of the court in receiving the testimony of the witness Cox — the reception of which constitutes the basis of the first assignment of error — is, we think, fully shown by what was decided in Insurance Company v. Wilkinson, * and in the cases therein mentioned. The testimony was admitted, not to contradict the written warranty, but to show that it was noj the. warranty of Dillard, though signed by him. Prepared, as it was, by the company’s agent, and the answer to No. 5 having been made, as the witness proved, by the agent, the proposals, both questions and answers, must be regarded as the act of the company, which they cannot be permitted to set up as a warranty by the assured. And this is especially so when, as in this case, true answers were in fact made by *156 the applicant (if the witness is to be believed), and the agent substituted for them others, now alleged to be untrue, thus misrepresenting the applicant as well as deceiving his own principals. Nor do we think it makes any difference that the answers as written by the agent were subsequently read to Dillard and signed by him. Having himself answered truly, and Yeiser having undertaken to prepare and forward the proposals, Dillard had a right to assume that the answers he did make were accepted as meaning, for the purpose of obtaining a policy, what Yeiser stated them in writing to be. The acts and declarations of Yeiser are to be considered the acts and declarations of the company whose agent he was,, and .Dillard was justified in so understanding them. The transaction, therefore, was substantially this: The company asked Dillard, “Are you temperate and regular in your habits?” to which he answered, “I never refuse to take a drink,” or, “I always take my drinks.” To this the company replied,in effect, “We understand your answer to mean the same, in your application for a policy, as if you had answered ‘yes,’ and we accept it as such, and write ‘yes’ in the proposals.” Then, upon being asked whether he warranted the truth of his answers, he returned the reply, “Since you so understand my answers, I do.” Surely, after such a transaction, the company cannot be permitted to say that the applicant is bound by what was written in the proposals for insurance as his warranty. And that such was the transaction the evidence received by the court tended to prove. The first assignment of error, therefore, cannot be sustained. Nor can the sixth, which is to the charge of the court, and which presents substantially the same question as that raised by the first. The second assignment complains of the exclusion of certain testimony of Dr. Alexander. We cannot see why the •testimony should have been received. The unfitness of Dillard for insurance in June, 1870, surely could not be proved by the fact that the witness had then expressed an opinion that he was unfit. And besides, such an opinion had uo pertinency to any of the issues joined between the parties. *157 The witness was also asked whether he was acquainted with the condition and state of health of Dillard in June, 1870; and, if so, what it was, and the nature of his disease or malady, if any; and to this question, also, the court refused to permit an answer. The policy on which the suit was brought was made on the 30th day of August, 1870. Had the question addressed to the witness related to a time subsequent to the issuance of the policy, the. answer to it Bhould have been received, for one of the issues on trial was whether Dillard, “ after the execution of the policy, became so far intemperate as to. impair his health.” But there was no issue in regard to his health prior to the insurance, and, therefore, the evidence offered was rightly rejected. Of the fourth and fifth assignments, it is sufficient to say that we do uot perceive they exhibit any error. The third assignment is of more importance. The plaintiff's were allowed in the cross-examination of one of .the defendants’ witnesses to ask whether one Dearing, the general travelling agent and supervisor of the defendants in the Southern States, did not, some time after the death of Dillard, and after he had made an examination*of the claim of the plaintiffs, express an opinion that it should be paid. To this question the witness replied that Dearing had expressed his opinion that it would be best for the defendants to accept the situation and pay the amount of the policy. That such an opinion allowed to go to the jury must have been very hurtful to the defendants’ case is manifest, and that it was inadmissible is equally clear. The opinion of an agent, based upon past occurrences, is never to be received as an admission of his principals; and this is doubly true when the agent was not a party to those occurrences. We have so recently discussed this subject in Packet Company v. Clough, * that it is needless to say more. For the error in receiving this evidence the judgment must be reversed. Judgment reversed, and a New trial ordered. Footnotes [*] 13 Wallace, 222. [*] 20 Wallace, 528.