Appeal from superior court, New Haven county; Ralph Wheeler, Judge.
Action by Patrick J. Ward to recover against the Metropolitan Life Insurance Company ou a policy of insurance on the life of John Ward. Judgment for plaintiff. Motion for new trial overruled, and defendant appeals. Reversed.
The following were among the provisions of the policy:
"This policy is issued in consideration of and relying upon the truth of each of the statements, declarations, and warranties contained in the application for this insurance, and the answers, statements, and declarations contained in or indorsed upon the application are, and each of them is, warranted to be true; and it is expressly agreed upon between the company and the insured that if they or any of them are untrue, or if this policy has been obtained by fraud, misstatement, or concealment, then this policy shall be absolutely null and void, and all premiums paid thereon be forfeited. Inasmuch as only the officers at the home office of the company in the city of New York have authority to determine whether or not a policy shall issue on any application, and as they act on the written statements and representations made in the application for this policy, it is expressly understood and agreed that no information, statements, or representations made or given by or to the person soliciting or taking the application for this policy, or by or to any other person, shall be binding on the company, or in any manner affect its rights, unless such information, statements, or representations have been reduced to writing, and presented to the officers of the company at the home office, in the application referred to. * * * No agent has the power in behalf of the company to make or modify this or any contract of insurance, to extend the time for paying a premium, to waive any forfeiture, to issue a permit for residence, travel, or occupation, or to bind the company by making any promise or receiving any representation or information. This power can be exercised only by the president or secretary of the company, and will not be delegated."
A copy of the application was attached. Among its contents were the following:
"Give full particulars of any illness you may have had since childhood. Thirteen years ago had rheumatism in the left leg from working in water. It lasted in slight degree for two months. Has not had it since. When were you last confined to the house by illness? Had typhoid fever 24 years ago; was sick a month; perfectly recovered. (5) Have you ever met with any accidental or personal injury? No. (6) Have you ever been seriously ill? If so, when, with what, and who was the medical attendant? (State his name and residence.) Only when ill with typhoid fever, 24 years ago. Dr. Barry, of New Haven, attended him. * * * (8a) Name and residence of your usual medical attendant? A. I haven't any. (b) When and for what has his services been required? 24 years ago, for typhoid fever. (9) Have you consulted any other medical man? If so, when and for what? No.
"It is hereby declared, agreed, and warranted by the undersigned: (1) That the answers and statements contained in the foregoing application, and those made to the medical examiner as recorded in parts A and B of this sheet, together with this declaration, shall be the basis and become part of the contract of insurance with the Metropolitan Life Insurance Company; that they are true, and are correctly recorded, and that no information or statement not contained in this application received or acquired at any time by any person shall be binding upon the company, or shall modify or alter the declarations and warranties made in this application; that any false, incorrect, or untrue answer, any suppression or concealment of facts in any of the answers to the foregoing questions, any violation of the covenants, conditions, or restrictions of the policy
any neglect to pay the premium on or before the date it becomes due, shall render the policy null and void, and forfeit all payments made and all dividends which may have accrued therefrom. (2) That no person other than the president or secretary shall have power to waive any contract or condition on behalf of the company, which alteration or waiver to take effect must be in writing."
The answer alleged that the insured was suffering at the date of the application from the results of a serious accident, from which he never recovered. The reply alleged: "(2) At the time of the making of said application, and prior thereto and after the same was made, the said John Ward and the plaintiff fully stated to and informed the defendant and the agents who took said application of all the facts set up in all said special defenses; and at the time the defendant issued said policy, and from that time down to the date of the death of said John Ward, the defendant and its officers and agents knew of said facts set up in all said special defenses. (3) The defendant, its officers and agents, knowing all of said facts set up in all said special defenses, as set forth in paragraph 2 of this reply, collected premiums on said policy till the date of the death of said John Ward, and thereby waived all claim and right to insist on a forfeiture of said policy in suit, and thereby ratified and confirmed said policy, notwithstanding any of the matters set up in said special defenses; and the defendant is estopped from claiming any of the matters set up in any of said special defenses as a reason why the plaintiff should not recover." There was evidence that the insured had suffered from the injuries as alleged; that these facts were communicated to the general agent of the defendant at the time the application was made out, and also to the local agent; that they both knew of the statements in the application, and accepted the premiums from the insured; and that they had both informed the assured that this would make no difference in the validity of the policy.
The court charged as follows: "There is a presumption that an agent of the principal, acting in his duty as agent, and receiving information which it is his duty to communicate to his principal, will so communicate it. If it be proved, however, in any case, that an agent, even a general agent, acted in collusion with a third person fraudulently towards his principal for the benefit of that third person, and not of his principal, there is no longer any presumption that he communicated any knowledge to his principal; and so, in such a case, an insurance company would not be chargeable with any knowledge of the untruth of statements in the application which were made by the applicant fraudulently, and at the fraudulent suggestion of agents, who simply desire, for their own purpose, to procure applicants for insurance. Of course, fraud, in any case, is not to be presumed; it must be proved as a fact; but it may be proved by circumstantial, evidence, if the circumstances are such as to remove the presumption of honest conduct, which always exists, and also to outweigh the testimony tending to disprove the fraud. If the jury find from the evidence upon this question that there was fraudulent collusion between Lefebure and Morrissey and Ward, that neither the president, secretary, nor managers were actually informed of the real facts in regard to the application, then the plaintiff cannot recover, and your verdict should be for the defendant. * * * If you find from the evidence that the president and secretary of the company, or its managers in New York, learned in fact from Lefebure or from Morrissey or any one else that the statements in the application were not correct, and were informed of all the facts in connection with the issue of the policy, and that the company still continued to receive the premiums, such knowledge and the receiving of the premiums would be a waiver of...
