Wyss-Thalman v. Maryland Casualty Co. of Baltimore

• Decision Date: 20 October 1910
• Citation: 193 F. 55
• Parties: WYSS-THALMAN et al. v. MARYLAND CASUALTY CO. OF BALTIMORE.
• Court: U.S. District Court — Western District of Pennsylvania

193 F. 55

WYSS-THALMAN et al. v. MARYLAND CASUALTY CO. OF BALTIMORE.

United States Circuit Court, W.D. Pennsylvania.

October 20, 1910

Dunn &amp Moorhead, for the motion.

Gordon & Smith, opposed.

ORR District Judge.

This matter comes before the court upon a motion for a new trial on the part of the plaintiffs. The action is brought upon a policy of accident insurance, dated February 5, 1909. The provisions of the policy necessary for consideration are:

First. The provision that the policy is issued 'in consideration of the statements in the schedule of warranties hereinafter contained and of $15 premium.'

Second. The stipulation:

'An agent has no authority to change this policy, or to waive any of its provisions, nor shall notice to any agent or knowledge of his or any other person be held to effect a waiver or change in this contract, or any part of it. No change whatever in this policy and no waiver of its provisions shall be valid unless an indorsement is added hereto signed by the president or secretary of the company expressing such change or waiver. In any manner relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.'

Third. The stipulation:

'That all the warranties made by the assured upon the acceptance of this policy are true, viz.'

Fourth. The following questions and answers in the schedule of warranties referred to, which appear upon the face of the policy as part thereof:

'(9) No application ever made by me for insurance has been declined, and no accident or health policy issued to me has been canceled, except as herein stated. No.

'(10) I have never received indemnity for any accident or illness, except as herein stated. No.

'(11) I have no accident or health insurance, nor have I applied for any in this or any other company, except as herein stated. No.'

At the trial it was admitted that the assured had procured an accident policy from the Travelers' Insurance Company of Hartford, Conn., on September 16, 1908, and that the same had been canceled by the company on October 28, 1908; that on November 20, 1908, the said Travelers' Insurance Company of Hartford, Conn., paid the assured indemnity for a disability sustained by him on October 23, 1908, for a period of 17 days; that at the time of the issuance of the policy sued on in the case at bar the assured had two accident policies in force issued by the American Fidelity Company of Montpelier, Vt.; and that the policies issued by the said Travelers' Insurance Company and the American Fidelity Company had been applied for by the assured named in the policy in suit.

After the introduction of such evidence, the plaintiffs, in rebuttal, offered to prove by an insurance broker that the answers in said schedule of warranties were not made by the assured, but by the witness, and that they were inserted in the policy without the consent of the assured and without his knowledge; and further, to prove by the soliciting agent of the defendant that the answers were filled in by the insurance broker in the office of the soliciting agent in the absence of the assured, and that therefore the statements were the statements of the company and not the statements of the assured, who it appears was not present at the time the...