State Ins. Co. of Des Moines v. Jordan

• Decision Date: 06 May 1890
• Parties: STATE INS. CO. OF DES MOINES v. JORDAN.
• Court: Nebraska Supreme Court

29 Neb. 514

45 N.W. 792

STATE INS. CO. OF DES MOINES

v.JORDAN.

Supreme Court of Nebraska.

May 6, 1890.

Syllabus by the Court.

1. The agent of an insurance company, who is authorized to procure applications for insurance and to forward them to the company for acceptance, is the agent for the insurer, and not of the insured, in all that he does in preparing the applications, or as to any representations as to the character and effect of the statements so made.

2. Where it appeared that the insured was unable to read and write, and the application was made out by the agent of the insurance company, who testified that he read it over to the insured, while the latter testified that the agent did not so read it, and he had no knowledge of its contents, there being thus a conflict of evidence on this point, and the jury having found for the plaintiff, held that, if the insured was not aware of the contents of the application, he would not be bound by statements therein.

Error to district court, Madison county; NORRIS, Judge.

Higgins & Garlow, for plaintiff in error.

H. C. Brome, for defendant in error.

MAXWELL, J.

This is an action on a policy of insurance. The insurance company, in its amended answer to the amended petition, alleges that, “at the time said policy of insurance was issued, the plaintiff made his written application therefor, in which he warranted said application to contain a true and full description and statement of the condition, situation, value, occupancy, and title of the property proposed to beinsured in the said State Insurance Company of Des Moines, and warranted the answers to each of the questions asked in said application to be true; that among the questions asked in said application of the plaintiff was the following: ‘Is the property incumbered in any way? If so, how much, and when due?’ to which inquiry plaintiff answered: ‘The entire incumbrance is none,’ -- and defendant says that said answer to said interrogatory was false and untrue, for at that time the said real estate upon which said property was situated was incumbered in the sum of $500.00 by a mortgage, which was executed prior thereto, and defendant says that by reason of said false and untrue answer, so made in said application, said policy by its terms was void, and the defendant was never liable thereon; that said application contained an interrogatory as follows: ‘Chimneys, what kind?’ to which interrogatory plaintiff made the following answer: ‘Galvanized iron cap,’--which answer was false and untrue, for at that time, and no time thereafter, was there a galvanized iron cap, as stated by plaintiff in said application, and defendant says that by reason of said false and untrue answer, so made in said application, said policy was by its terms void, and defendant was never liable thereon; that the following question, among others contained in said application, was asked said plaintiff: ‘[Granary,] its direction and distance from the house;’ to which interrogatory said plaintiff answered: ‘N. W. 100 feet,’--which answer to said interrogatory, so made, was false and untrue, for said granary was not of the distance of 100 feet from said house, as in said application so stated, and defendant says that by reason of said false and untrue answer so made, said policy by its terms was void, and defendant was never liable thereon; that said application, by its terms, and by the terms of the policy of insurance, is made a part of the contract, and the statements contained in said application shall be the sole basis of the contract between the...