Bothell v. National Cas. Co.

• Court: Washington Supreme Court
• Writing for the Court: GOSE, J.
• Citation: Bothell v. National Cas. Co., 109 P. 590, 59 Wash. 209 (Wash. 1910)
• Decision Date: 28 June 1910
• Parties: BOTHELL v. NATIONAL CASUALTY CO.

109 P. 590

59 Wash. 209

BOTHELL v. NATIONAL CASUALTY CO.

Supreme Court of Washington

June 28, 1910

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Arabell Bothell against the National Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed with directions.

H. T Granger and Fred G. Clarke, for appellant.

John L Rockwell and Robert C. Saunders, for respondent.

GOSE J.

On October 15, 1908, one A. J. Bothell made a written application to the appellant for a policy of accident insurance. Immediately preceding his signature to the application, the following provisions are printed in the same type as the remainder of the application: 'I understand and agree that, if I contract illness or am injured fatally or otherwise after having changed my occupation to one classified by this company in their manual as more hazardous than that herein stated, or if I am injured while performing, temporarily or otherwise, any act pertaining to any more dangerous hazard or exposure, or occupation, the company's liability shall be only for such proportion of the principal sum or other indemnity as the premium paid by me will purchase, at the rate fixed by the company for such greater or more perilous hazard or exposure'; and 'I further agree to accept the policy subject to its provisions, conditions, limitations and the company's manual of classification of hazards.' The application states that the applicant is the owner of a logging camp, and that his duties are 'contracting only; not working.' The appellant accepted the application, issued its policy of insurance with a copy of the application attached, and forwarded it to the insured. The application is by express words made a part of the policy. The policy was issued on October 17, 1908, and the insured sustained injuries from which he died while working as a logger on November 17th following. The case was tried to the court, and a judgment entered in favor of the respondent for $1,000 and costs. The appellant contends that the judgment should have been entered for $100, with legal interest and costs, which it tendered in its answer.

The record presents but one question. The respondent pleaded, and was permitted to prove, that the insured fully and truthfully stated the duties of his occupation to the appellant's solicitor, who procured the application, and that the solicitor wrote a false answer to the printed question in the application, and thereby caused the application to falsely state that the duties of the insured were 'contracting only; not working,' when the insured had informed him that he did 'everything about the camp. Sometimes I tend hook; somethimes drive team, run engine,' etc. The appellant objected to the introduction of this evidence. The appellant's manual of classification of hazards, which was admitted in evidence, provides that the death indemnity for a logger under the policy is $100. We think the respondent can recover only this sum, with legal interest. The policy automatically adjusts itself to the occupation of the insured, and gives him such indemnity as the premium paid by him will purchase in the occupation in which he is engaged when injured. This is fair and equitable to both the insurer and the insured. True, it does not give the beneficiary all that the solicitor promised, but it does give her all that the premium would have purchased had the application truthfully stated the occupation. By the automatic provisions of the policy the insured is guaranteed protection, and the company is protected against the overzeal and dishonesty of its agents.

The case is not analogous to the cases in this and other jurisdictions hereafter referred to, where the insurance company sought to avoid all liability on account of breaches of warranty clauses, where the true facts were stated to the agent and false answers were written in the application by him. In such cases it has been held that his knowledge is the knowledge of the company, and that it will not be presumed that the company intends to issue a worthless policy. An analogous case may be stated by supposing that a man 50 years of age applied for a policy upon his life, correctly stating his age; that the agent falsely stated in the application that the applicant was 21 years of age, and the policy contained a provision adjusting the liability of the company to such sum as the premium paid would purchase according to the age of the applicant at the time of the issuance of the policy. Certainly, in such a case, the beneficiary could not recover more than the premium paid would purchase at the regular premium rate according to the mortality tables. Ferguson v. Lumberman's Ins. Co., 45 Wash. 209, 88 P. 128, is in point. That was an action to recover upon a fire insurance policy. The application and the policy described only lumber while contained in the yard and the sheds in the yards of the assured. The court permitted oral evidence on the part of the insured, to the effect that the agent of the company stated to the insured when the application was signed that the policy was an 'unlimited policy,' meaning that it covered lumber in the mill and the adjoining buildings as well as lumber in yards, and that the insured would not have taken the policy but for such statements, and also that, at the time the policy was delivered and thereafter, the agent renewed the statement. It was held that the evidence tended directly to contradict the terms of the policy and the application, and that the court erred in admitting it. We think this case in principal clearly supports the view that the terms of the application and policy in the case at bar must control. In the Ferguson Case it was sought to show that the agent represented that the policy included property not described in the application or the policy. In the case at bar the respondent contends that it can recover on the policy as modified by the parol testimony.

In Employers' Liability Assur. Corp. v. Back, 102 F. 229,...