Bilodeau v. Prudential Ins. Co. of Am.
| Decision Date | 28 June 1930 |
| Citation | 151 A. 481 |
| Parties | BILODEAU v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | New Hampshire Supreme Court |
Rehearing Denied Oct. 7, 1930.
Exceptions from Superior Court, Hillsborough County; Oakes, Judge.
Action by Joseph Bilodeau, administrator, against the Prudential Insurance Company of America. Directed verdict for defendant, and case transferred on plaintiff's exception.
Exception sustained.
Action to recover on a policy insuring the life of the plaintiff's intestate. She had consumption and was not an insurable risk when the policy was issued. The defendant's soliciting agent knew her condition, but secured the issuance of the policy by deceitfully informing the defendant through a fraudulent application that her health was sound and by deceitfully informing her that her disease did not make her uninsurable. The policy provided that it should not take effect if the insured were not in sound health on its date.
Transferred by Oakes, judge, on the plaintiff's exception to a directed verdict for the defendant.
Thomas J. Leonard, of Nashua, for plaintiff.
Thorp & Branch, of Manchester, for defendant.
In Domocaris v. Met. Life Ins. Co., 81 N. H. 177, 123 A. 220, the insurer was held liable under a parallel situation with the facts here presented, with the single point of difference that it did not there appear that the policy in terms required the insured's good health at its date for it to go into effect. The reasoning on which the decision in the case was reached makes the difference immaterial. The case rests on a theory of estoppel against the insurer in favor of an innocent policy holder, although it is also innocent in fact, when the policy is issued through fraud practiced by the agent on both parties. If the agent's knowledge is to be imputed to the insurer, his fraud in law becomes its fraud, and consistency requires that it be estopped from asserting in defense the ineffectiveness of the policy because of the expressed condition precedent (Packard v. Met. Life Ins. Co., 72 N. H. 1, 54 A. 287) relative to the insured's health at its date, as well as from asserting the falsity of the representations about such health. The insurer if actually having knowledge of the facts would waive, or be estopped from asserting in defense, the condition, and if it is chargeable as though it did have actual knowledge, it is in no better position to take advantage of the condition. The parol evidence rule yields to doctrines of estoppel and waiver. Ball v. Granite State Mut....
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...Justice. The facts recited above disclose a situation parallel to the one considered by this court in the case of Bilodeau v. Insurance Co., 84 N.H. 405, 151 A. 481, and the plaintiff contends that he is entitled to judgment under the rule announced in that case. The defendant admits that t......
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