Morrissey v. Travelers Protective Association
| Decision Date | 22 January 1932 |
| Docket Number | 28006 |
| Citation | 240 N.W. 307,122 Neb. 329 |
| Parties | MATTHEW J. MORRISSEY, APPELLANT, v. TRAVELERS PROTECTIVE ASSOCIATION, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where an applicant for insurance in a fraternal beneficiary association makes untruthful statements to the association in an application for insurance prepared by himself as a basis for insurance, and which statements are material to the risk of insurance, said association is not estopped to deny its liability under its policy or certificate of membership even though the member of said association who solicited said applicant knew of the untruthfulness of said statements so made by said applicant.
2. The general rule which imputes knowledge of an agent to his principal does not extend to a case where a member of a fraternal beneficiary association solicits one to join said association and the one solicited prepares his own application and makes representations therein material to the risk of insurance that both the applicant and the soliciting member know to be untruthful.
Appeal from District Court, Lancaster County; Broady, Judge.
Action by Mathew J. Morrissey against the Travelers' Protective Association of America, a corporation. Judgment for the defendant on a directed verdict, and the plaintiff appeals.
Judgment affirmed.
J. W Kinsinger, H. C. Henderson and Lincoln Frost, Jr., for appellant.
Hall, Cline & Williams, contra.
Heard before ROSE, GOOD, DAY and PAINE, JJ., and LESLIE, District Judge.
The defendant is a fraternal beneficiary association and issued its policy in the form of a certificate of membership to the plaintiff April 25, 1930, upon application made in the usual manner by plaintiff through a member of the association. The certificate provides for death and accident benefits. About a month after the issuance of the policy the plaintiff met with an accident resulting in an injury to his right eye necessitating its removal. The defendant denies liability under its policy, and alleges that it was induced to issue it because of false representations by the plaintiff in his application with reference to his eyesight, and that said representations were warranties and material to the risk of insurance. One of the interrogatories propounded to the plaintiff in the application was: "Is your eyesight impaired?" To which plaintiff wrote as his answer, "No." The plaintiff admits the untruthfulness of his answer, and that at the time he had a traumatic cataract of the left eye of such seriousness that he had practically no sight in it. He contends, however, that when he came to this question he asked the member who had solicited him what his answer should be, and that he said in effect: "Since you can see all right, the answer should be 'No.'"
The plaintiff contends that his answer was not a warranty, but a representation not material to the risk of insurance, and, further, that, the soliciting member knowing the condition of plaintiff's sight, and having suggested the answer, defendant is estopped to deny its liability.
The trial court, at the conclusion of all of the evidence, sustained the motion of defendant for a directed verdict.
Six assignments of error are relied upon by plaintiff, but we think it only necessary to consider whether the trial court erred in sustaining defendant's motion for a directed verdict.
It is admitted that the answer made by the plaintiff in response to the question, "Is your eyesight impaired?" was false and known to be by the plaintiff when he made it. Therefore, whether such answer was a warranty or a representation, if it was material to the risk and the policy would not have been issued had the plaintiff stated the truth as to his sight, the plaintiff cannot recover unless the defendant is precluded from claiming nonliability because of knowledge the soliciting member had concerning plaintiff's sight.
It is definitely settled by this court, through a long line of cases, that, in determining whether statements made in an application for insurance are warranties or representations the court will take into consideration the situation of the parties, the subject-matter, and the language employed, and will consider a statement made to be a warranty only when it clearly appears that such was the intention of the contracting parties. Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N.W. 125; Kettenbach v. Omaha Life Ass'n, 49 Neb. 842, 69 N.W. 135. It is equally well settled as the law of this state that a distinction is recognized between questions in an application which call for statements of conclusions of fact not expressly within the knowledge of the applicant, and in regard to which the insurance company has equal means of ascertaining for itself the truth, and, on the other hand, questions which call for information regarding facts necessarily and peculiarly within the knowledge of the applicant. It is held that an incorrect or untrue answer in an application for life insurance in reference to matters of opinion will not void a policy, but that an untrue answer in an application for life insurance as to matters which are peculiarly within the knowledge of the applicant, and material to the risk, will void the policy. Royal Neighbors of America v. Wallace, 73 Neb. 409, 102 N.W. 1020; Swanback v. Sovereign Camp, W. O. W., 103 Neb. 34, 170 N.W. 354; Seal v. Farmers & Merchants Ins. Co., 59 Neb. 253, 80 N.W. 807; Muhlbach v. Illinois Bankers' Life Ass'n, 108 Neb. 146, 187 N.W. 787. That the information sought to be obtained by the answer to the question was peculiarly within the knowledge of the plaintiff is scarcely open to discussion. He has admitted that he...
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