Carrozza v. National Life Ins. Co.

• Decision Date: 01 March 1916
• Docket Number: 154-1915
• Citation: 62 Pa.Super. 153
• Parties: Carrozza v. National Life Insurance Company, Appellant
• Court: Pennsylvania Superior Court

62 Pa.Super. 153

Carrozza v. National Life Insurance Company, Appellant

No. 154-1915

Superior Court of Pennsylvania

March 1, 1916

Argued May 10, 1915 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Lawrence Co.-1913, No 13, on verdict for plaintiff in case of Carmine Carrozza v National Life Insurance Company of the United States of America.

Assumpsit on a policy of life insurance. Before William E. Porter, P. J.

The facts are stated in the opinion of the Superior Court.

The court charged in part as follows:

[So you will see it becomes a material question in this case as to whether or not Mr. Switzer caused false answers to appear upon the application for insurance and whether or not the plaintiff here made truthful answers to the questions that were asked him. If he made truthful answers and they were either negligently, mistakenly or fraudulently written by the agent on the paper differently, then the company would not be able to escape responsibility or liability on that account, for the reason that it is the company's agent that is responsible for the false answers in the paper. But the jury must be clearly satisfied that the answers were written down falsely by the agent. You have the application made by the plaintiff and signed by him and the jury should not conclude, without due reflection and without being clearly satisfied that the plaintiff made truthful answers and that the agent either fraudulently, negligently or mistakenly wrote down improper answers to the questions. If you find that he did, and that the plaintiff made truthful answers, then the plaintiff would be entitled to recover.]

Counsel for the plaintiff requests us to instruct you:

1. The fraud or mistake of the insurance agent within the scope of his authority will not enable his principal to avoid a contract of insurance to the injury of the insured who acted in good faith; and the fraud or mistake of the agent may be proved by parol evidence, notwithstanding it is provided in the policy that the description of the property shall be a part of the contract and the warranty of the insured.

Ans. Affirmed.

Verdict and judgment for plaintiff for $ 102.06. Defendant appealed.

Errors assigned were above instructions quoting them.

J. Norman Martin, with him Norman A. Martin, for appellant. -- The insured having accepted the policy and renewed it four times with a copy of the application in which the false answers as to prior disability and medical attention plainly appeared will not now be heard to say that incorrect answers were inserted by the agent: Stewart v. General Accident Ins. Co., 35 Pa.Super. 120; Lynch v. Travelers Ins. Co., 200 F. 193; Wyss-Thalman v. Md. Casualty Co., 193 F. 55; Gaines v. Fidelity & Casualty Co., 87 N.Y.S. 821; Colaneri v. General Accident Ins. Co., 110 N.Y.S. 678; Leuten Brick Co. v. Killen, 235 Pa. 144; Rinker v. AEtna Life Ins. Co., 214 Pa. 608; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392; Forwood v. Prudential Ins. Co., 83 A. 169; Bonewell v. North American Acc. Ins. Co., 167 Mich. 274; Reynolds v. Atlas Accident Ins. Co., 71 N.W. 831; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392; Madsen v. Md. Casualty Co., 142 P. 51.

The insured is bound by his agreement that the company shall not be bound by any knowledge of or statements made by or to any agents unless written in the application: Rinker v. AEtna Life Ins. Co., 214 Pa. 608; Suravitz v. Prudential Ins. Co., 224 Pa. 582; Scientific American, Etc., Dept. v. Creighton, 32 Pa.Super. 140; AEtna Life Ins. Co. v. Moore, 231 U.S. 356.

The insured having accepted the return of all the premiums with the understanding that they were tendered on the ground that the policy had been rendered void, is thereby estopped to claim that the policy is valid: Austin v. Mutual Reserve Fund Life Assn., 132 F. 555; In re Millers and Mfgs. Ins. Co., 106 N.W. 485; Ashton's App., 73 Pa. 153; Robinson v. Hay, 91 Pa. 242.

Jas. A. Chambers, of Akens, Wilkinson, Lockhart & Chambers, for appellee. -- Where an applicant for insurance has acted in good faith and misstatements have resulted from the negligence or bad conduct of the agent of the company, the company cannot take advantage of its agent's wrong and thereby escape liability on its policy: Mullen v. Union Central Life Ins. Co., 182 Pa. 150; Dowling v. Merchants' Ins. Co., 168 Pa. 234; Landes v. Safety Mutual Fire Ins. Co., 190 Pa. 536; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157; Eilenberger v. Protective Mut. Fire Ins. Co., 89 Pa. 464; Smith v. Farmers' & Mechanics' Mut. Fire Ins. Co., 89 Pa. 287; Stewart v. General Accident Ins. Co., 39 Pa.Super. 396; Suravitz v. Prudential Ins. Co., 244 Pa. 582.

The payment of part of a debt due without a release under seal will not discharge the debt: Girard Fire, Etc., Insurance Company v. Canan, 195 Pa. 589; Evesson v. Ziegfeld, 22 Pa.Super. 79; Krauser v. McCurdy, 174 Pa. 174; Collins v. Busch, 191 Pa. 549; McCauley v. Cremerieux, 132 Pa. 22.

Before Rice, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.

OPINION

HEAD, J.

The plaintiff is an Italian, illiterate in the English language and unable to read in that tongue. His testimony was delivered through an interpreter. The verdict establishes that an agent of the defendant company, one Switzer, solicited him to take out an insurance policy in his company. The agent produced the requisite blank application and asked the plaintiff such questions as he deemed necessary and himself wrote down what purported to be the answers of the plaintiff to the questions propounded. The plaintiff was, as stated, unable to read the application as it was filled up. The agent did not read it to him, but at the request of the latter, the plaintiff signed it in good faith, believing that it truly exhibited the real state of facts. The agent forwarded the application to the company and in due time the plaintiff received his policy. After having regularly paid his monthly premium for several months, he fell sick and for a period of time was disabled as a result of that sickness. By reason of this disability the defendant became liable to pay him a stipulated sum, if any liability at all accrued to it under the circumstances. After the disability arose, the defendant company became satisfied that some of the statements contained in the application, which by its terms was a warranty of the truth of the facts therein stated, were untrue. It then undertook to return the premiums paid by the plaintiff and mailed him a check for the amount of them. The plaintiff brought this action to recover the indemnity to which he claimed to be entitled by the terms of his policy. In its affidavit of defense the company set up that it had tendered a check for the return of the premiums, and then and there offered to confess a judgment for the amount of that check. It further defended on the ground that the plaintiff had warranted the truth of every statement of fact in his application, that there had been a breach of such warranty, and that as a consequence the defendant was relieved of any liability. In answer to the defense thus set up, the plaintiff was permitted to prove on the trial, by his own testimony and that of others, that he had truly answered every question propounded to him by the defendant's agent, and that if, as a matter of fact, the application did not disclose the real facts in the case, that result was chargeable either to the fraud or mistake of the defendant's agent. The learned trial judge submitted these questions to the jury in a charge that was free from error, if there was any question to be submitted, and a verdict for the plaintiff followed.

It may be conceded that in the construction of some of the covenants affecting the rights of the parties in insurance contracts, the decisions of the Supreme Court of Pennsylvania are not entirely in harmony with those in some of the other jurisdictions. But we think it clear, under our own decisions, it has become the well-settled law that where an application for a policy of insurance is declared to be a warranty of the truth of the facts therein stated, if it be filled out by an agent of the company, the plaintiff is not precluded from showing by testimony that, either through the fraud or mistake of the agent, his answers were not truly recorded, and the company in such cases may not protect itself by reason of such fraud or mistake on the part of its own agent. Eilenberger v. Protective Fire Insurance Co., 89 Pa. 464; Susquehanna Fire Insurance Co. v. Cusick, 109 Pa. 157; Kister v. Insurance Co., 128 Pa. 553; Meyers v. Lebanon Mut. Insurance Co., 156 Pa. 420; Dowling v. Merchants' Insurance Co., 168 Pa. 234.

In each of these cases the policy issued on the strength of a written application or description of the buildings to be insured and their uses, in which the assured expressly warranted the truth of every statement in his application or description. In each the paper containing the warranty had been actually filled up by an agent of the company. In each the company defending was able to establish by admission or proof a breach of the warranty. In each the assured was permitted to prove that he had in fact answered truthfully all questions propounded to him by the agent, so that if the application or description did not exhibit the facts, that result was to be charged to " the fraud or mistake of a knavish or blundering agent," and not to the assured who had relied on the honesty and capacity of the agent and signed in perfect good faith.

In the very late case of Suravitz v. Prudential Insurance Co., 244 Pa. 582, Mr. Justice Elkin,...