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quence of the false representation. The same doctrine was recognized in the case of Smith vs. Insurance Company, 24 Pa. State, 320. In Mitchell et al vs. Lycoming Mutual Insurance Company, 51 Pa. St. 402, it was held that an agent of Ins. Co. whose duty is to take surveys, receive applications for insurance, examine the circumstances of a loss, approve assignments, and receive assessments, is not authorized to accept notice of over insurance or waive its consequences, and the case of Wilson vs. Conway Fire Ins. Co. does not stop with a recognition of the foregoing doctrines, but holds that an agent of an Insurance Co. empowered merely to receive written applications for insurance, to transmit them to the company, and, if they decide to take the risk, to receive the policy executed by them, and to issue it to the applicant upon receipt from him of the premium, is not the agent of the company for the making of applications; and if employed by the applicant, or permitted to act for him in drawing up the application, is his agent, for whose mistakes of fact committed in the statements or answers to interrogatories in the application he is responsible. To the same purport are Lowell vs. Middlesex Mutual Fire Ins. Co., 8 Cush., 127; Forbes vs. Agawam Ins. Co. 9 id., 470; Lee vs. Howard Ins. Co., 3 Gray, 583.

In support of the converse doctrine, see Rowley vs. Empire Ins. Co., 36 N. Y., 550. In this case the plaintiff stated to the agent verbally the facts necessary to meet the requirements of the rules of the company, and among other things informed him that the premises were incumbered by mortgage. An application was signed in blank by plaintiff and given to the agent, he promising to insert over the signature thus obtained the particulars thus furnished him, as a basis of the insurance, on his return to his residence. In filling up the application the agent inserted what was not the fact, and in violation of his instructions, that there was no incumbrance on the premises. It was held that he was the agent of the company in filling up the application, and that the company was bound by acts. In the case of Masters vs. Madison Co. Mutual, 11 Barbour, 624, it was held that although the by-laws of an insurance company make the person taking a survey in its behalf the agent of the applicant, still he is the agent of the company also, and it is bound by his acts. In the case of Sepson vs. Montgomery County Mutual, 9 Barbour, 191, it was held that where a policy of insurance requires that in case of any prior existing insurance upon the same property, notice thereof shall be given to the company; notice to an agent authorized to make surveys and receive applications for insurance, and to receive the moneys paid by the assured is sufficient, and that such notice need not be in writing. In the case of McEwan vs. the Montgomery County Mutual Ins. Co., 5 Hill, 101, it was held that notice to the traveling agent of the company, whose business was to solicit insurance, make surveys, and receive applications whilst actually engaged in preparing an application for a policy, was binding upon the com

pany, although the notice never reached the company; and that notice to an agent relating to business which he is authorized to transact, and while actually engaged in transacting it, will in general enure as notice to the principal. See also Rowley vs. Empire Ins. Co., 3 Keys, 559, and Anson vs. The Winnesheik Ins. Co., 23 Iowa, 84. To this latter view the judicial mind seems rapidly tending, and it is certainly more in accord with the enlightened and progressive spirit of the age. These companies select their own agents, require them to enter into bonds for the faithful discharge of their duties, and send them forth provided with blanks and clothed with all the insignia of authority. If their ignorance or their cupidity leads them to recommend improper risks, it is more in consonance with reason that the loss should be borne by the company, than that the assured should be made the victim of the incompetency or the avarice of the agent. More especially is this true, in view of the fact that the company has the means of indemnity through the bond of the agent.

Just principles of public policy require that these companies should be held to a strict degree of responsibility for the acts of their agents. They will thus be led to the exercise of greater circumspection in the selection of agents, and the masses will, in part at least, be relieved from an annoying importunity, which often leads them to procure policies without the full concurrence of their judgments, and in opposition to their best interests. The business of insurance is rapidly increasing in magnitude and importance, and it is as essential to the companies themselves as to the assured, that the rules of law declared applicable to them should be based upon just and equitable principles, and administered in a manner in harmony with the doctrines of an enlightened jurisprudence. It is quite time that the technical constructions which have pertained, with reference to contracts of this kind, blocking the pathway to justice, and leading to decisions opposed to the general sense of mankind, should be abandoned, and that these corporations, grown opulent from the scanty savings of the indigent, should be held to the same measure of responsibility as is exacted of individuals. It follows that, in our opinion, the Court did not err in instructing the jury that the defendant was bound by notice communicated to its agents.

II. The Court gave the following instructions, to wit:

"The language of the policy does not make the statements, contained in the application for it, matters of warranty, but matters of representation."

The defendant excepted to this instruction, and assigns the giving of it as error. A warranty differs from a representation in two essential respects:

1. A warranty constitutes a part of the contract, and it is necessary that it should be exactly and literally complied with; but a representation is collateral to the contract, and it is sufficient that it be equitably and substantially complied with.

2. In case of a warranty, the burden of proof is upon the party seeking indemnity to establish a case in all respects in conformity with the terms under which the risk was assumed; but in case of a representation, the burden is cast upon the defendant to set forth and prove the collateral facts upon which he relies.

1 Phillips, on Insurance, Secs. 669 and 754, and Campbell vs. New England Mutual Life Insurance Co., 98 Mass., 389-90. In the case of Daniels vs. Hudson River Fire Insurance Co., 12 Cushing, 416, Shaw, C. J., very clearly and forcibly illustrated the distinction between a warranty and a representation. He said: "The difference ( between a warranty and a representation) is most essential. If any statement of fact, however unimportant it may have been regarded by both parties to the contract, is a warranty, and it happens to be untrue, it avoids the policy; if it be construed a representation and is untrue, it does not avoid the contract if not willful or if not material. To illustrate this: the application in answer to interrogatory, is this: 'Ashes are taken up and removed in iron hods," whereas it should turn out in evidence that ashes were taken up and removed in copper hods-perhaps a set recently purchased and unknown to the owner. If this was a warranty, the policy 18 gone; but, if a representation, it would not, we presume, affect the policy, because not willful or designed to deceive, but more especially because it would be utterly immaterial, and would not have influenced the mind of either party in making the contract or in fixing its terms."

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In the case of Campbell vs. New England Mutual Life Ins. Co., it was said that: "When statements or engagements on the part of the insured are inserted, or referred in the policy itself, it often becomes difficult to determine to which class they belong. If they appear on the face of the policy, they do not necessarily become warranties. Their character will depend upon the form of expression and the apparent purpose of the insertion, and sometimes upon the connection or relation to other parts of the instrument. If they are contained in a separate paper referred to in such a manner as to make it a part of the contract, the same consideration of course will apply * In considering the question whether a statement forming a part of the contract is a warranty, it must be borne in mind, as an established maxim, that warranties are not to be created nor extended by construction. They must arise, if at all, from the fair interpretation and clear intendment of the words used by the parties." Citing Daniels vs. Hudson River Ins. Co., 12 Cushing, 416, 424; Blood vs. Howard Ins. Co., 12 Cushing; 472; Jefferson Ins. Co., vs. Cotheal, 7 Wend., 72; Forbush vs. Western Mass. Ins. Co., 4 Gray, 337, 340. The application is in itself collateral merely to the contract of insurance. Its statements, whether of facts or agreements, belong to the class of representations. They are to be so construed, unless converted into warranties by force of a reference to them, in the policy, and a clear purpose, manifest in the papers thus connected, that the whole shall

form one entire contract. When the reference to the application is expressed to be for another purpose, or when no purpose is indicated to make it part of the policy, it will not be so treated. Campbell vs. New England Mutual Life Ins. Co., 98 Mass., 391-2; Snyder vs. Farmers Ins. and Loan Co., 13 Wend., 92. In the case of Daniels vs. Hudson River Fire Ins. Co., Shaw, C. J., having alluded to the fact that a warranty, however immaterial, if untrue, avoids the policy, uses this language: "Hence it is, we suppose, that the leaning of all Courts is to hold such a stipulation to be a representation, rather than a warranty, in all cases where there is any room for construction, because such construction will, in general, best carry into effect the real interest and purpose which the parties have in view in making their contract."

And the learned Chief Justice in the same case further said: "If by any words of reference the stipulations in another instrument, such as the proposal or application, can be construed a warranty, it must be such as make it in legal effect a part of the policy." In the case of Campbell vs. New England Mutual Life Ins. Co., the defendant insisted, as in the present case, that certain statements were to be regarded as warranties, and the point decided in the case is so pertinent to the present inquiry, and the reasoning is so clear and forcible, that we feel justified in quoting further from it. The Court said: "In every case cited in support of the defendant's position, there was an express reference in the policy which made the application a part of the contract. The one most relied on, and claimed to be especially applicable to the facts of the present case, is that of Miles vs. Connecticut Ins. Co., 3 Gray, 580.

In that case it was declared in the policy itself to be expressly understood and agreed to be the true intent and meaning hereof, that if the proposal, answer and declaration made by the assured, 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. In that proposal the assured declare (among other things) that the answers and statements therein made are correct and true, and agree that the answers given to the following questions, and the accompanying statements, and this declaration, shall be the basis, and form part of the contract or policy between them and the said company.

Two marked features in that case distinguish it from the present: First, the clause in the policy relates distinctly and exclusively to the paper called "The Proposal and Declaration." Second, when the two papers are thus brought together, there is a distinct agreement, not only that the statements are true and correct, but that they are to form a part of the contract. In the present case, the policy contains no reference to any application, nor to any declaration or statement in writing made or to be made by the assured. The only clause in the policy which can have any bearing upon the question, when disconnected from other provisions of a diverse character, reads as follows, namely:

"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."

It is clear that this is not a reference to any particular instrument or paper, but it includes any and all statements, whether oral or written. The defendant, however, contends that a written application having been made in this case, which, by its own terms, declares the statements therein contained, to be made as the basis of the insurance applied for, the policy will attach to that application as containing the statements referred to, and thus constitute an express warranty. We are far from being ready to concede that the reference is sufficiently definite to warrant the bringing of the two papers together for the purpose of giving a construction to the contract. But even if the application may properly be resorted to for aid in the construction, it contains no agreement, and no words to indicate that its statements are to be taken as warranties; nor that they are to form part of the contract."

In the case at bar, the proceedings with reference to the procuring of the policy comprise five papers. The one designated “A," is headed: "Particulars required from persons proposing to effect assurance on lives in this company." That designated "B," is headed: "Questions to be answered by the physician of the party applying for insurance." That designated "C," is headed: " Questions to be answered by the friend of the party applying for assurance." That designated "D," is headed : "Questions to be answered by the Agent, if the applicant is not personally known to him." And the fifth is designated as follows: "Declaration to be made and signed by a person proposing to make an assurance on the life of another."

This last mentioned paper is the one which appears first in the statement of facts, and is signed "Mary L. Miller, by James A. Miller." To this, reference is made in the policy as follows:

"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." It is worthy of note that the declaration is referred to by name, and that to none of the other papers, each of which has a specific designation in the proceedings, is any reference made in the policy. In this respect it differs from the case of Miles vs. Connecticut Ins. Co., before alluded to, in which the policy made direct reference to the proposal, answer and declaration made by the assured, and provided that if they were found in any respect untrue, the policy should be null and void. Applying the principles of the foregoing decision to the present case, it follows that the statements contained in the declaration can alone be regarded as 3-VOL. I, No. 1.

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