claration to be made and signed by a person proposing to make an assurance on the life of another." The policy contained the following clauses: "or if the statements made by, or on behalf of, or with the knowledge of the said assured to the company, as the basis of, or in the negotiation for this contract, shall be found in any respect untrue, then, and in each of said cases, this policy shall be null and void," "and it is also understood and agreed by the within assured, to be the true intent and meaning hereof, that if the declaration made by or for the assured, and bearing date the 19th day of February, 1866, and upon the faith of which this agreement is made, shall be found in any respect untrue, then, and in such case, this policy shall be null and void."-Held "that the statements contained in the declaration can alone be regarded as warranties, and that the answers of Miller to the questions propounded to him are mere representations." 1 Phillips, on Insurance, ?? 669 and 754; Campbell vs. New England Mutual Life Ins. Co., 98 Mass., 389-90; Daniels vs. Hudson River Fire Ins. Co., 12 Cushing, 416; Snyder vs. Farmers Ins. and Loan Co., 13 Wend., 92; Miles vs. Connecticut Ins. Co., 3 Gray, 580. Miller vs. The Mutual Benefit Life Ins. Co. - 2. REPORT OF DECISIONS RENDERED IN INSURANCE CASES, IN THE UNITED STATES SUPREME AND CIRCUIT COURTS, AND IN THE STATE SUPREME COURTS, SINCE JANUARY 1, 1871. From certified transcripts in our possession. SUPREME COURT OF IOWA, Appeal from Delaware Circuit Court. MARY L. MILLER, vs. THE MUTUAL BENEFIT LIFE INS. CO. * On the 19th day of February, A. D. 1866, Mary L. Miller, through her husband James A. Miller, made an application to the Mutual Benefit Life Insurance Company for a Policy of insurance upon the life of her said husband, as follows, to wit: "I, Mary L. Miller, wife of James A. Miller, of Le Claire, in the county of Scott, in the State of Iowa, being desirous of effecting an assurance with the Mutual Benefit Life Insurance Company, in the sum of five thousand dollars, upon the life of James A. Miller, of Dubuque, in the State of Iowa, the person described on the other side, during the whole continuance thereof, do hereby declare that the age of the said James A. Miller, next birth day, will be thirty one years, that he does not, to the best of my knowledge and belief, practice any bad or vicious habit that tends to the shortening of life. * * * * * And I hereby agree that the answers of the said James A. Miller, and those of his physician and friend, shall be the basis of the contract between myself and the company; and if any untrue or fraudulent allegation is contained in those answers, or in this declaration, all moneys which shall have been paid to the said company on account of the assurance made in consequence thereof, shall be forfeited for the benefit of the company." * Decision Rendered April 5, 1871. Dated this 19th day of February, in the year of our Lord one thousand eight hundred and sixty-six. MARY L. MILLER. By JAMES A. MILLER." Twenty-two printed interrogatives were propounded to James A. Miller, among which, with the answers thereto, were the following, to wit: Name and residence of the party's usual medical attendant, or of the medical attendent of his family, to be referred to for information as to his health. DR. SPRAGUE, DUBUQUE, Iowa. Name and residence of an intimate friend, to be referred to for similar information. CHARLES J. ROGERS, ESQ., DUBUQUE, Iowa. Is the party sober and temperate? Yes. Has he always been so? Yes. Is the party aware that any untrue or fraudulent allegation made in effecting the proposed assurance will render the policy void, and that all payments of premiums made thereon will be forfeited? Yes. Among the questions propounded to Charles J. Rogers, with the answers thereto, were the following, to wit: Are his habits of life temperate? I think they are. Among the questions proposed to Dr. Sprague, with the answers thereto, are the following: Is he sober and temperate? Cannot say. Has he always been so? So far as I know. Thornton, who was an agent of the company, sent Case, who was also the company's agent, to procure the answers of Rogers and Dr. Sprague to the interrogatories propounded to them. The testimony of Rogers as to the interview between himself and Case, is as follows: "I looked over the questions I was requested to answer in the application, and when I saw the questions: Is he sober and temperate? and has he always been so?' I said to Mr. Case: Mr. Miller was already insured in the Equitable, and I had advised him not to surrender his policy in that company, as it had been running for a number of years, and if this company was going to take a policy on his life, I wanted them to take him understandingly. So far as I was concerned, to the first question: 'Is he sober and temperate?' I could answer yes; I gave my reasons why I could so answer. I had got Mr. Miller a situation in my brother-in-law's bank, upon the express promise that he would not drink any more; that he had been perfectly sober since he had been in the bank, and I trusted he would be so in the future. That in regard to the next question: Has he always been temperate?' I said, I had known Mr. Miller for a period of ten years, and during that time he had not always been a man of sober and temperate habits, but had indulged in the use of intoxicating liquors; that if I answered that question at all, I should have to answer it conscientiously, and say, No, to which he replied that it was a mere matter of form, and requested me to leave it blank. Therefore, I filled out the answers in the blanks to the other questions and signed my name thereupon. Mr. Case took the application out of my office, and I never saw it afterwards until it was introduced in evidence on the former trial of this cause. I never gave anybody permission to fill the blank." Case returned with the interrogatories to Thornton, and informed him, "that Mr. Miller was not insurable an account of Mr. Rogers' statement that he had not always been temperate, and that Mr. Rogers had not filled the blank in answer to the question, "Has he always been temperate?" The answer, "So far as I know," to the interrogatory, "Has he always been so?" propounded to Rogers, is in the hand-writing of Thornton. Thornton testifies that Rogers gave him permission to so fill it. Dr. Sprague also failed to answer the question, “Has he always been so?" and the evidence tends to prove that the answer thereto is in the handwriting of the agent Thornton. There is no evidence that he had any authority from Sprague to so answer it. Among the questions answered by S. M. Case, the agent, was the following: "Do you consider him, from the information you have, a fit person to be insured, and do you recommend him to the directors as such?" Ans. "Yes." In pursuance of these proceedings, a policy of insurance upon the life of James A. Miller was issued, containing among others, the following provisions, to wit: "Provided always, and it is hereby declared to be the true intent and meaning of this policy, and the same is accepted by the assured, upon these representations, that in case the said James A. Miller shall * die by reasons of intemperance * * * * from the use of intoxicating liquors, this policy shall be void, null and of no effect, and it is also understood and agreed by the within assured to be the true intent and meaning hereof, that if the declaration made by or for the assured, and bearing date the 19th day of February, 1866, upon the faith of which this agreement is made, shall be found in any respect untrue, then, and in such case, this policy shall be null and void." James A. Miller died on the 19th day of April, 1868. This suit was commenced in the Delaware Circuit Court, for the recovery of the amount of the policy. The answer admits the issuance of the policy; the death of James A. Miller; that he was the husband of plaintiff, and that plaintiff owns the policy, and avers that James A. Miller made false and fraudulent answers to the questions-"Is the party sober and temperate?" "Has he always been so?" And that James A. Miller died by reasons of intemperance from the use of intoxicating liquors, whereby it is alleged that said policy became void. The testimony establishes that Miller, for many years prior to the insurance, had been a man of very intemperate habits, and tended to prove that his death was occasioned by the intemperate use of intoxicating liquors. The cause was tried by a jury. Verdict and judgment for plaintiff for $5000. Defendant appeals. The further necessary facts appear in the opinion. DAY, CH. J. ADAMS & ROBINSON, for Appellant. D. C. CRAM & C. J. ROGERS, for Appellee. I. The defendant requested the Court to give the jury the following intructions: "It is provided in the policy, that it is the true intent and meaning thereof that if the declaration made by or for the assured, and bearing date the 19th day of February, 1866, shall be found in any respect untrue, then the policy should be void. If, therefore, you find said declaration in any respect materially untrue, your verdict must be for the defendant." The Court refused this instruction and gave the following: "An untrue or fraudulent statement, or denial made by the applicant, of a fact material to the risk, to induce the issuance of a policy, will prevent the policy from taking effect as a valid contract, unless the insurer has in some way waived, or stopped himself from relying upon such misstatement to avoid the policy." "If an insurance company issues a policy upon a greater risk than an ordinary one, with a full knowledge of all the facts, it cannot escape the binding obligation of its contract by pleading such fact." "If you find that James A. Miller made an untrue or fraudulent statement of fact material to the risk, in the application for the policy, then you should find for the defendant, unless you further find that the defendant was informed of and knew the truth in regard to such fact, and after knowing such fact fully, received the application, the premium money, and notes, and issued the policy, in which case you should find for the plaintiff." "A full knowledge of the truth of the alleged misstatements of Miller in the application, communicated to Thornton and Case, or either, was a communication to the company." The refusing to give the one, and the giving of the other instructions, the defendant assigns as error. This assignment presents for our consideration this interesting question: Is an insurance company, transacting business through an agent having authority to solicit, make out and forward applications for insurance, to deliver over policies when returned, and to collect and transmit premiums, affected by the knowledge acquired by such agent, when engaged in procuring an application, and bound by his acts at such time done with respect thereto? Upon this point there is much conflict in the decisions. In the case of Vose vs. Eagle Life and Health Insurance Company, 6 Cushing, Mass., 42, it was held that where an agent of a Life Insurance Company, who was not authorized to agree for insurance, knew of the falsity of a material representative by an applicant, such knowledge would not prevent the company from insisting upon a discharge in conse |