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in the policy. Carpenter v. Providence | cases relied on by that court are wholly deWashington Ins. Co. 4 How. 185, 11 L. ed. cisions of several state courts and of some 931.
of the circuit courts. Nor is it claimed by This court held, affirming the circuit court the learned counsel for the defendant in er. of the United States for the district ofror that the Carpenter Case has been form. Rhode Island, sitting in equity, that, under ally overruled or modified by this court. the facts disclosed by the pleadings and evi. He, however, does cite three decisions of dence, the complainant was not entitled to this court which, as he views them, should equitable relief.
be regarded as abandoning the doctrines of "It is a matter of regret that so great a that case, viz., Union Mut. L. Ins. Co. v. loss, which the plaintiff and those under Wilkinsoni, 13 Wall. 232, 20 L. ed. 622;
whom he claims intended to guard against Eames v. Home Ins. Co. 94 U. S. 621, 24 L. of by insurance, should happen entirely with ed. 293, and Knickerbocker L. Ins. Co. v.
out indeninity. But it is to be remembered Norton, 96 U. S. 234, 24 L. ed. 689. that the defendants gave abundant and re- These cases must, therefore, receive our peated notice to him, in writing and print attention. What, then, was the case of Unin the policy itself, as well as other ways, ion Mut. L. Ins. Co. v. Wikinson! That that they would not take any risks on was a case where the agent of a life insur. property where it was insured beyond a cer- ance company had inserted in the applica. tain ratio of its full value, unless the cir- tion a representation of the age of the cunstances were made known to them, and mother of the assured at the time of her the additional policy recognized in writing death, which was untrue, but which the so as to avoid any mistake, or accident, or agent himself obtained from a third person want of deliberate attention to the subject. and inserted without the assent of the asIf the plaintiff, after all this, omitted to sured. It was held that this untrue statecomply with so substantial a provision in ment contained in the application did not the contract itself, as we are bound to be invalidate the policy; that permitting ver. lieve on the evidence now offered, we see no bal testimony to show how this untrue state way, equitably or legally, to prevent the ment found its way into the application did consequences from falling on himself, rather not contradict the written contract sued on, than others, being the result either of his but proceeded on the ground that this stateown neglect, or that of some of the agents ment was not that of the assured. The he employed. An adherence to such im- trial court said to the jury that if the apportant rule is peculiarly necessary for the plicant did not know at what age her mothprotection of absent stockholders, often in- er died, and did not state it, and declined terested extensively in insurance compa to state it, and that her age was inserted nies; and so far from its being unconscien- by the agent upon statements made to him tious to enforce them, when their existence by others in answer to inquiries he made is well known, and when the risk has been of them, and upon the strength of his own increased without conforming to them, it judgment, based upon data thus obtained, is the only and just safeguard of all con- it was no defense to the action to show that cerned in such institutions."
the agent was mistaken. The case, as re Carpenier v. Providence Washington Ins. ported, does not disclose that the plaintiff's Co. 16 Pet. 495, 10 L. ed. 1044, has been testimony as to the way in which the untrue frequently referred to as an authority in statement was put in the application was subsequent cases on points collateral to the contradicted or denied by the company. It
considering. Taylor v. may therefore be presumed that the plainBenham, 5 How. 260, 12 L. ed. 143; Russell tiff's case, in that respect, was made out by v. Southard, 12 How. 145, 13 L. ed. 929; undisputed evidence. And it would seem, Oates v. First Nat. Bank, 100 U. S. 246, 25 such being the state of facts, that this court L. ed. 583; Burgess v. Seligman, 107 U. S. had reason to hold that the untrue state 34, 27 L. ed. 365, 2 Sup. Ct. Rep. 10. ment was not made by the assured, and that
In Phenix Mut. L. Ins. Co. v. Raddin, 120 it would operate as a fraud on the plaintiff U. S. 183, 189, 30 L. ed. 644, 646, 7 Sup. Ct. if he were not permitted to show this fact, Rep. 500, 502, we find Carpenter v. Provi- which was not a fact or statement contained dence Washington Ins. Co. cited, per Mr. in the policy sued on, bu an extrinsic fact Justice Gray, as an authority for the prop- or statement contained in the application. osition that “the parties may by their con- The defense made upon that statement was, tract make material a fact that would in legal effect a denial of the execution of otherwise be immaterial, or make immate the statement-a defense that can always be rial a fact that would otherwise be mate- sustained by parol evidence. rial. Whether there is other insurance on However this may have been, we are unthe same subject, and whether such insur- willing to have the case regarded as one ance has been applied for and refused, are overthrowing a general rule of evidence. material facts, at least when statements Some of the remarks contained in the opin. regarding them are required by the insur. ion might seem to bear that interpretation, ers as part of the basis of the contract." but not necessarily so.
It is not pretended in the opinion of the That Mr. Justice Miller did not intend, in majority in the circuit court of appeals in the case of Union Mut. L. Ins. Co. v. Wilthe present case that the case of Carpenter kinson, to lay down a new rule of evidence v. Providence Washington Ins. Co. has been in insurance cases, is clearly shown in the modified or overruled by this court, but the subsequent case of Merchants' Mut. Ins. Co.
v. Lyman, 15 Wall. 664, 21 L. ed. 246, where , negotiations and verbal statements the opinion was delivered by the same merged and excluded when the parties aslearned justice, and who used the following sent to a written instrument as expressing language:
the agreement.” "Undoubtedly a valid verbal contract for Eames v. Home Ins. Co. 94 U. S. 621, 24 insurance may be made, and when it is re L. ed. 298, is another case relied on as show. lied on, and is unembarrassed by any writing that the general rule of evidence was not ten contract for the same insurance, it can applicable in insurance cases. But that was be proved and become the foundation of a the case of a bill in equity filed against an recovery as in all other cases where con insurance company of New York to require tracts may be made either by parol or in said company to issue to the complainants writing.
a policy of insurance against loss or damage “But it is also true that when there is a hy fire, in pursuance of a contract for that written contract of insurance it must have purpose alleged to have been made with the same effect as the adopted mode of ex- their agents in Illinois. It was made to appressing what the contract is, that it has in pear that the terms of a contract for insurother classes of contract, and must have the ance upon property which was destroyed by same effect in excluding parol testimony in fire before the policy was received had been its application to it that other written in- agreed upon. This agreement was mani. struments have.
fested by an application signed by the com. “Counsel for the defendants in error here plainant, and in several letters which had relies on two propositions, namely, that the passed between the local agent and the gen. policy, though executed January 5th, is real- eral agent of the company, and between the ly but the expression of a verbal contract, complainant and the local agent.
The remade the 31st day of December previous, port of the case states that there was an and that the loss of the vessel between those agreement as to certain facts by the attor. two dates does not invalidate the contract, neys in the cause, but what those facts were though known to the insured and kept se does not distinctly appear in the report. cret from the insurers; and, secondly, that Ilowever, all that can be claimed for the they can abandon the written contract al. case is that this court considered, from the together and recover on the parol contract. agreement as to facts between the attorneys
"We do not think that either of these and from the application and the several letpropositions is sound. Whatever may have ters between the agents and the complain. been the precise facts concerning the nego- ant, that a case was made out justifying tiations for a renewal of the insurance pre a court of equity to decree that complainant vious to the execution of the policy, they was entitled to a policy of insurance to be evidently had reference to a written con- issued for the amount and at the premium tract, to be made by the company. When shown by the proofs. What was the scope the company came to make this instrument of the authority of the agents who prepared they were entitled to the information which the application and conducted the corres. the plaintiffs had of the loss of the vessel. pondence does not appear, but the court If then they had made the policy, it would seems to have assumed that it sufficiently ap. have bound them, and no question could peared that the agents had authority to act have been raised of the validity of the in- as they did. It is not perceived that this strument or of fraud practiced by the in case has any valid application to the case sured. On the other hand, if they had re now before us, beyond apparently holding, fused to make a policy, no injury would with Union Alut. L. Ins. Co. v. Wilkinson, have been done to the plaintiffs, and they in 13 Wall. 232, 20 L. ed. 622, that it may would then have stood on their parol con- be shown by parol that a statement which tract, if they had one, and did not need a purports to have been made by an applicant policy procured by fraudulent concealment for insurance was not, in point of fact, his of a material fact at the time it was exe- statement, but was really that of the agent. cuted and the premium paid.
The next case relied on is Knickerbocker “To permit the plaintiffs, therefore, to L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. prove by parol that the contract of insurance ed. 689, and in which it was held by a mawas actually made before the loss occurred, jority of this court that an insurance comthough executed and delivered and paid for pany may waive any condition of a policy afterward, is to contradict and vary the inserted therein for its benefit. As to this ternis of the policy in a matter material to proposition there was, and could have been, the contract, which we understand to be op- no disagreement among the judges, but the posed to the rule on that subject in the law ditference arose over the sufficiency of the of Louisiana as well as at the common law. evidence to show the waiver. The question
“We think it equally clear that the terms really was whether the company's agent of the contract having been reduced to writ- had authority to extend the payment of a ing, signed by one party and accepted by the premium note, notwithstanding a provision other at the time the premium of insurance in the policy that a failure to pay the note was paid, neither party can abandon that at maturity would incur a failure of the instrument, as of no value in ascertaining policy, and a declaration that the agents of what the contract was, and resort to the the company were not authorized to make, verbal negotiations which were preliminary alter, or abrogate contracts or waive forfeito to its execution, for that purpose. The ures. It was held by the majority that a doctrine is too well settled that all previous' waiver by the company of both these condi.
tions might be shown by admitting evidence ther considered in the case of Globe Mut. L. as to the practice of the company in allow. Ins. Co. v. Wolff, 95 U. S. 326, 24 L. ed. ing its agents to extend the*time for pay. 387, when the unanimous opinion of the ment of premiums and of notes given for court was delivered by Mr. Justice Field: premiums, as indicative of the power given "By the residence of the insured within to those agents, and that error was not com the prohibited district of country during mitted by submitting to the jury, upon such the period designated in the policy without evidence, to find whether the defendants had the previous consent of the company, and or had not authorized its agent to make an the failure of the assured to pay the annual extension in this case. In speaking for the premium when it became due, the policy, by majority, Mr. Justice Bradley said: its express terms, was forfeited, and the
“The written agreement of the parties, as company released from liability, unless the embodied in the policy and the indorsement forfeiture was waived by the action of the thereon, as well as in the notes and the recompany, or of its agents authorized to repceipt given therefor, was undoubtedly to the resent it in that respecto express purport that a failure to pay the “The waiver of the forfeiture for the nonnotes at maturity would incur a forfeiture payment of the premium due on the 1st of of the policy. It also contained an express November, 1872, is alleged on the ground declaration that the agents of the company that the premium was subsequently paid to were not authorized to make, alter, or abro an agent of the company, he delivering its gate contracts, or waive forfeiture. And receipt for the same, signed by its secretary these terms, had the company so chosen, it and countersigned by the manager and cash. could have insisted on. But a party al. ier of the local office, the plaintiff contendways has the option to waive a condition or ing that the company, by its previous gen. stipulation made in his own favor. The eral course of dealing with its agents, and company was not bound to insist upon a for its practice with respect to the policy in feiture, though incurred, but might waive suit, had authorized the premiums to be it.
That it (the company) did au- paid and the agent to receive the same after thorize its agents to take notes, instead of they became due, and thus had waived any money for premiums, is perfectly evident right to a strict compliance with the terms from its constant practice of receiving such of the policy as to the payment of premiums. notes when taken by them. That it author. "The waiver of the forfeiture arising from ized them to grant indulgence on these notes, the residence within the prohibited district if the evidence is to be believed, is also ap between the 1st of July and November, withparent from like practice. It acquiesced in out the previous consent of the company, is and ratified their acts in this behalf." also alleged from the subsequent payment
Mr. Justice Strong, speaking for the dis- of the premium and its receipt by the local senting parties, said:
agent, the plaintiff contending that the pre “The insurance effected by the policy be mium was received with knowedge by the came forfeited by the nonpayment ad diem agent of the*previous residence of the inof the premium note. The policy then sured within the prohibited district. ceased to be a binding contract. It was so "The conditions mentioned in the policy expressly stipulated in the instrument. could, of course, be waived by the company, Admitting that the company could after- either before or after they were broken; wards elect to treat the policy as still in they were inserted for its benefit, and it de force, or, in other words, could waive the pended upon its pleasure whether they forfeiture, the local agent could not, unless should be enforced. The difficulty in this he was so authorized by his principals. The case, and in nearly all cases where a waiver policy declared that agents should not have is alleged in the absence of written proof of authority to make such waivers. And there the fact, arises from a consideration of the is no evidence in this case that the company effect to be given to the acts of agents of gave to the agent parol authority to waive the company in their dealings with the as à forfeiture after it had occurred. They sured. Of course, such agents, if they bind had ratified his acts extending the time of the company, must have authority to waive payment of premium notes, when the exten- a compliance with the conditions upon thesion was inade before the notes fell due. breach of which the forfeiture is claimed, or But no practice of the company sanctioned to waive the forfeiture when incurred, or any act of its agent, done after a policy had their acts waiving such compliance or forexpired, by which new life was given to a feiture must be subsequently approved by dead contract."
the company. The law of agency is the Whatever may be thought of these diver- same, whether it be applied to the act of an gent views, it is clear that the facts of that agent undertaking to continue a policy of case are widely different from those here insurance or to any other act for which his under consideration, where there is no evi. principal is sought to be held responsible. dence whatever of a waiver by the company, or of authority to the agent, express or im.
The company, notwithstanding the proplied, from a course of practice by the com- vision in the policy that its agents were not pany. Here, the company "has chosen," in authorized to waive the forfeitures, sent to the language of Mr. Justice Bradley, “to in- them renewal receipts signed by its secre sist upon the terms of the written con- tary, to be used when countersigned by its tract."
local manager and cashier, leaving their use The subject of waiver by agents was fur. 'subject entirely to the judgment of the lo.
cal agent. The propriety of their use, in | had some knowledge of the forfeiture, before the absence of any fraud in the matter, it can be held to have waived it. It is true could not afterwards be questioned by the that, where an agent is charged with the colcoinpany.
So far, then, as the lection of premiums upon policies, it will be waiver of the forfeiture incurred for non- presumed that be informs the company of, payment of the premiums is concerned, it is any circumstances coming to his knowledge clear that the company, by its course of deal. "affecting its liability, and if subsequently ing, had, notwithstanding the provision of the premiums are received by the company the policy, left the matter to be determined without objection, any forfeiture incurred by its local agent, to whom the renewal re- will be presumed to be waived. But here ceipts were intrusted.
there was no ground for any inference of “But so far as a forfeiture arose from the this kind from the subsequent action or siresidence of the insured within the prohib- lence of the company. There was no evi. ited district, the case is different. There is dence of a disregard of the condition as to nothing in the acts of the company which the residence of the insured in any previous goes to show that it ever authorized its year, and, consequently, there could be no agents to waive a forfeiture thus incurred, inference of a waiver of its breach from a or that it ever knew of any residence of the subsequent retention of the premium paid. insured within the prohibited district until This is a case where immediate enforcement informed of his death there. In every case of the forfeiture incurred was directed when where premiums were received after the day information was received that the condition they were payable, the fact that a forfeit of the policy in that respect had been brokure had been incurred was made known to en. the company, from the date of the payment, “Not only should the company have been and the retention of the money constituted informed of the forfeiture before it could be a waiver of the forfeiture; but no informa- held by its action to have waived it, but it tion of a forfeiture on any other ground was should also have been informed of the conimparted by the date of such payment. The dition of the health of the insured at the agent receiving the premium, in the case at time the premium was tendered, upon the bar, testitied that he knew nothing of the payment of which the waiver is claimed. residence of the insured within the prohib- The doctrine of waiver, as asserted against ited district during the excepted period, and insurance companies to avoid the strict enthe evidence in conflict with his testimony forcement of conditions contained in their was slight. He knew that the insured had a policies, is only another name for the docplace of business there, and that he was trine of estoppel. It can only be invoked permitted to make occasional visits there when the conduct of the companies has been within that period, and to reside there at such as to induce action in reliance upon it, other times. Everything produced as evi- and where it would operate as a fraud upon dence of knowledge of residence within the the assured, if they were afterwards allowed prescribed district is consistent with these to disavow their conduct and enforce the occasional visits and residence at other times conditions. To a just application of this than during the excepted period.
doctrine it is essential that the company "But, even if the agent knew the fact of sought to be estopped from denying the residence within the excepted period, he waiver claimed, should be apprised of all could not waive the forfeiture thus incurred the facts; of those which create the forfeitwithout authority from the company. The ure and of those which will necessarily in. policy declared that he was not authorized fluence its judgment in consenting to waive to waive forfeitures; and to the provision it. The holder of the policy cannot be per effect must be given, except so far as the mitted to conceal from the company an imsubsequent acts of the company permitted portant fact, like that of the insured being it to be disregarded. There is no evidence in extremis, and then to claim a waiver of that the company in any way, directly or in the forfeiture created by the act which directly, sanctioned a disregard of the pro brought the insured to that condition. To vision with reference to any forfeitures, ex- permit such concealment, and yet to give to cept such as occurred from nonpayment of the action of the company the same effect premiums. As soon as it was informed of as though no concealment were made, would the residence of the insured within the pro tend to sanction a fraud on the part of the hibited district, it directed a return of the policyholder, instead of protecting him premium subsequently paid. It would be against the commission of one by the comagainst reason to give to the receipt of the pany." premium by the agent, under the circum. New York L. Ins. Co. v. Fletcher, 117 U.00 stances stated, the efficacy claimed. The S. 319, 29 L. ed. 934, 6 Sup. Ct. Rep. 837, is court, in its instructions, treated the re "an instructive case on the points in contro * ceipt of the premium by the agent, with versy here. The facts of the case, as stated knowledge of the previous residence of the in the syllabus, were as follows: insured within the prohibited district, if “A person applied in St. Louis to an agent the agent had such knowledge, as itself a of a New York insurance company for insursufficient waiver of the forfeiture incurred, ance on his life. The agent, under general without any evidence of the action of the instructions, questioned him on subjects company when informed of such residence; material to the risk. He made answers and in this respect we think the court erred. which, if correctly written down and transIt is essential that the company should have' mitted to the company, would have probably
caused it to decline the risk. The agent, application he signed. He knew that upon without the knowledge of the applicant, it the policy would be issued, if issued at wrote down false answers, concealing the all. It would introduce great uncertainty truth, which were signed by the applicant | in all business transactions if a party makwithout reading, and by the agent transmit- ing written proposals for a contract, with ted to the company, and the company there representations to induce its execution, upon assumed the risk. It was conditioned should be allowed to show, after it had been in the policy that the answers were part of obtained, that he did not know the contents it, and that no statement to the agent not of his proposals, and to enforce it notwith. thus transmitted should be binding on his standing their falsity as to matters essential principal; and a copy of the answers, with to its obligation and validity. Contracts these conditions conspicuously printed upon could not be made, or business fairly conit, accompanied the policy. Held, that the ducted, if such a rule should prevail; and policy was void."
there is no reason why it should be applied The unanimous opinion of the court was merely to contracts of insurance. There is delivered by Mr. Justice Field, the princi- nothing in their nature which distinguishes pal portions of which were as follows: them in this particular from others. But
"It is conceded that the statements and here the right is asserted to prove, not only representations contained in the answers, as that the assured did not make the state. written, of the assured to the questions pro ments contained in his answers, but that he pounded to him in his application, respect- never read the application, and to recover ing his past and present health, were mate upon a contract obtained by representations rial to the risk to be assumed by the com- admitted to be false, just as though they pany, and that the insurance was made up were true. If he had read even the printed on the faith of them, and upon his agree lines of his application, he would have seen ment, accompanying them, that, if they were that it stipulated that the rights of the false in any respect, the policy to be issued company could in no respect be affected by upon them should be void. It is sought to his *verbal statements, or by those of its* meet and overcome the force of this conceded agents, unless the same were reduced to fact by proof that he never made the state writing and forwarded with his application ments and representations to which his to the home oflice. The company, like any name was signed; that he truthfully an other principal, could limit the authority swered those questions; that false answers, of its agents, and thus bind all parties deal. written by an agent of the company, were ing with thein with knowledge of the limi. inserted in place of those actually given, and tation. It must be presumed that he read were forwarded with the application to the the application, and was cognizant of the home office; and it is contended that, such limitations therein expressed. proof being made, the plaintiff is not estop- "In Globe Mut. L. Ins. Co. v. Wolff, 95 ped from recovery. But on the assumption U. S. 329, 24 L. ed. 388, the policy declared that the fact as to the answers was as stat- that the agents of the company were not aued, and that no further obligation rested thorized to waive forfeitures, and this court upon the assured in connection with the pol- held that effect must be given to the provi. icy, it is not easy to perceive how the com- sion, except so far as the subsequent acts of pany can be precluded from setting up their the company permitted it to be disregardfalsity, or bow any rights upon the policy ed. In Knickerbockcr L. Ins. Co. v. Vorever accrued to him. It is, of*course, not ton, 96 U. S. 240, 24 L. ed. 691, the policy necessary to argue that the agent had no contained an express declaration that the authority from the company to falsify the agents of the company were not authorized answers, or that the assured could acquire to make, alter, or abrogate contracts or no right by virtue of his falsified answers. waive forfeitures, and this court held that Both he and the company were deceived by the company could have insisted upon those the fraudulent conduct of the agent. The terms bad it so chosen. assured was placed in the position of mak- ent case is very different from Union Mut. ing false representations in order to secure 1. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 a valuable contract which, upon a truthful L. ed. 617, and from American Ins. Co. v. report of his condition, could not have been Mahone, 21 Wall. 152, 22 L. ed. 593. In obtained. By them the company was im- neither of these cases was any limitation posed upon, and induced to enter into the upon the power of the agent brought to the contract. In such a case, assuming that notice of the assured. Reference was made both parties acted in good faith, justice to the interested and officious zeal of insurwould require that the contract be canceled ance agents to procure contracts, and to the and the premiums returned. As the pres. fact that parties who were induced to take ent action is not for such cancelation, the out policies rarely knew anything concernonly recovery which the plaintiff could prop- ing the company or its officers, but relied erly have upon the facts he asserts, taken in upon the agent who had persuaded them to connection with the limitation upon the pow. effect insurance, 'as the full and complete ers of the agent, is for the amount of the representative of the company in all that is premiums paid, and to that only would he be said or done in making the contract,' and entitled by virtue of the statute of Missouri. the court held that the powers of the agent
“But the case as presented by the record are prima facie coextensive with the business is by no means as favorable to him as we intrusted to his care, and would not be narhave assumed. It was his duty to read the rowed hy limitations not communicated to