Standard Life & Acc. Ins. Co. v. Fraser

• Decision Date: 06 October 1896
• Docket Number: 295.
• Citation: 76 F. 705
• Parties: STANDARD LIFE & ACCIDENT INS. CO. v. FRASER.
• Court: U.S. Court of Appeals — Ninth Circuit

76 F. 705

STANDARD LIFE & ACCIDENT INS. CO. v. FRASER.

No. 295.

United States Court of Appeals, Ninth Circuit.

October 6, 1896

James Kiefer, for plaintiff in error.

Lindsay King & Turner, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

Eliza M. Fraser, the widow and beneficiary of Harry L. Fraser deceased, commenced an action in the court below to recover from the plaintiff in error $4,000, which she alleged was due her under a policy of accident insurance issued by said insurance company upon the life of said Harry L. Fraser. The insurance company set up several defenses, the first of which was that the policy was issued in consideration of warranties contained in the application, in which the applicant, at the time of applying for the insurance, had warranted that he had no other accident insurance in the said company, or any other company, and that he had made no application for accident insurance upon which he had not been notified of the company's action thereon, which warranties were false and untrue, in this: that on the 26th day of January, 1894, more than a year before Fraser's application, there had been issued to him, by the Fidelity &amp Casualty Company of New York, a policy insuring him against accident in the sum of $2,000 for 12 months, and that at the expiration of that policy, and on or about January 26, 1895, the same company, at the request of the insured, had renewed the same for 12 months thereafter. A second defense was that, subsequent to the issuance of the policy sued upon, the insured had violated the terms of the insurance contract by doing an unlawful act in that he had voluntarily engaged in and played a game of dice for money, and during the game he had become involved in a dispute over the result of the same and the ownership of the money bet thereon, and during the progress of said dispute, and as a result of said game, the insured was shot, and thereby met his death. A further defense was that the insured had warranted in his application that his occupation was 'proprietor of Hotel Northern sample and billiard rooms, not tending bar,' and that said statement was false and untrue, in this: that said insured did tend the bar of said hotel, and did frequently tend and wait upon the drinking bar therein, and that by reason of said false description of his occupation he obtained classification of his occupation as 'preferred,' and thereby secured a policy in $4,000, whereas, if he had stated his occupation correctly, as that of saloon keeper tending bar, the highest amount of insurance which the company would have granted would have been $2,000. The jury returned a verdict for the sum of $4,000, and returned negative answers to four special interrogatories submitted to them by the court, thereby finding that the insured did not receive his injuries as the result of being engaged in a violation of the law, and that he did not lead the agent of the insurance company to believe that the prior policy he had obtained from the Fidelity & Casualty Company was to be superseded by the policy which he obtained from the defendant in error, and also that the assault made upon the insured, whereby he lost his life, was unprovoked.

It is assigned as error that the court permitted the defendant in error to prove that one Brydges, who was the solicitor of the insurance company, was, at the time the insurance was applied for, fully advised of a state of facts directly the opposite to that represented by the answers of the insured to the question propounded to him in the application blank, viz. whether or not he had, or had applied for, other insurance. The testimony so admitted was that of the agent himself, who said that when he wrote up Fraser's application Fraser stated to him that he had a policy in the Fidelity & Casualty Company, which had expired on January 26, 1895, and had been renewed, but that the renewal had not been paid for, and that thereupon he, the agent, advised Fraser that the policy was not in force, and that Fraser could truthfully answer that he had no other accident insurance. It appeared that the agent was merely a solicitor of insurance, and had no power to issue policies, and that he turned in the application to the local office, which was authorized to write policies, without saying anything about the insurance in the Fidelity & Casualty Company. He also testified that from his conversation with Fraser he understood that the Fidelity policy was not to be renewed, and that the policy in suit was to supersede it. It appeared from the evidence that subsequently the premium was paid upon the prior policy, and that the policy remained in force during the year succeeding January 26, 1895.

It is contended by the plaintiff in error that the decision of the supreme court in the case of Insurance Co. v Fletcher, 117 U.S. 519, 6 Sup.Ct. 837, is decisive of the question here involved, and establishes the doctrine that, where notice is given in the application itself that the powers of the soliciting agent are limited, the company is not bound by any statement or conversation between the agent and the insured which is not...