{ "id": 11273166, "name": "A. T. FOLLETTE v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, OF NEW YORK", "name_abbreviation": "Follette v. United States Mutual Accident Ass'n", "decision_date": "1890-09", "docket_number": "", "first_page": "240", "last_page": "247", "citations": [ { "type": "official", "cite": "107 N.C. 240" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "96 N. C., 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650632 ], "opinion_index": 0, "case_paths": [ "/nc/96/0480-01" ] }, { "cite": "92 N. C., 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273978 ], "opinion_index": 0, "case_paths": [ "/nc/92/0417-01" ] }, { "cite": "84 N. C., 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693843 ], "opinion_index": 0, "case_paths": [ "/nc/84/0355-01" ] }, { "cite": "79 N. C., 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689369 ], "opinion_index": 0, "case_paths": [ "/nc/79/0279-01" ] }, { "cite": "66 N. C., 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276579 ], "opinion_index": 0, "case_paths": [ "/nc/66/0070-01" ] }, { "cite": "101 N. C., 133", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "33 Mich., 143", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1346570 ], "opinion_index": 0, "case_paths": [ "/mich/33/0143-01" ] }, { "cite": "53 Wis., 361", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8705706 ], "opinion_index": 0, "case_paths": [ "/wis/53/0361-01" ] }, { "cite": "59 Wis., 162", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11283175 ], "opinion_index": 0, "case_paths": [ "/wis/59/0162-01" ] }, { "cite": "8 Lea, 513", "category": "reporters:state", "reporter": "Lea.", "opinion_index": 0 }, { "cite": "49 Me., 200", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 621744 ], "opinion_index": 0, "case_paths": [ "/me/49/0200-01" ] }, { "cite": "60 Ill, 124", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499994 ], "opinion_index": 0, "case_paths": [ "/ill/60/0124-01" ] }, { "cite": "13 Wall, 222", "category": "reporters:scotus_early", "reporter": "Wall,", "case_ids": [ 1134248 ], "opinion_index": 0, "case_paths": [ "/us/80/0222-01" ] }, { "cite": "79 N. C., 284", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "92 N. C., 422", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "93 N. C., 240", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "88 N. C., 73", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 692, "char_count": 14235, "ocr_confidence": 0.518, "pagerank": { "raw": 2.0472984601643575e-07, "percentile": 0.7549581075962344 }, "sha256": "bc7d034580518b875712ccbb88c02f499119118943f96a74cfe86d4d7bbb6c53", "simhash": "1:ba4db501093d5b58", "word_count": 2408 }, "last_updated": "2023-07-14T15:31:37.064200+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. T. FOLLETTE v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, OF NEW YORK." ], "opinions": [ { "text": "Avery, J.\nafter stating the facts: It was competent to prove by the agent of the defendant, on his examination as a witness, that he knew, or had had abundant opportunity and good reason to know the extent of plaintiff\u2019s deafness when he solicited him to take out a policy, or subsequently, and before the application was signed.\nActual knowledge of the plaintiff\u2019s defective hearing on the part of the agent was constructive notice of it to his principal, and, hence, the latter is deemed to have waived the objection that the deafness of the former was a bodily infirmity, notwithstanding the fact that it was provided in the policy that the agents of the company should have no power to waive its conditions. Hornthal v. Insurance Company, 88 N. C., 73; Dupree v. Insurance Company, 93 N. C., 240; ibid., 92 N. C., 422; Collins v. Insurance Company, 79 N. C., 284; Insurance Company v. Wilkerson, 13 Wall, 222; Insurance Company v. Garfield, 60 Ill, 124; Witherill v. Insurance Company, 49 Me., 200; Insurance Company v. McVea, 8 Lea, 513; Woon on Insurance, \u00a7 496: Morrison v. Insurance Company, 59 Wis., 162; Shafer v. Insurance Company, 53 Wis., 361; Insurance Company v. Earle, 33 Mich., 143.\nAn application for insurance constitutes a part of the contract between the insurer and the insured, and the representations contained in it are presumptively inducements to the former to enter into it. But ivhen it appears that an agent, through whom a corporation acts, himself examined and valued, or had opportunity to estimate by examination actually made by him, the value of property insured against fire, or frequently conversed with a man partially deaf, had opportunity to test the extent of his infirmity, and after-wards solicited, or forwarded with favorable .recommendation, his application for insurance against accident, the insured will not be absolutely precluded from showing the fads as evidence that the corporation assented to what subsequently appeared to be an over-valuation in ihe one case, or had knowledge of the defective hearing, and waived objection to the risk on account of it, in the other.\nIt was material that the jury, in passing upon and finding the facts upon which the liability of the defendant depended, should hear any testimony that would aid them in determining whether the defendant company was induced, or might reasonably have been induced, by the false representation contained in the application, to enter into the contract, when it-would not have done so had its agents had full knowledge of the facts. The representation in the application must be, in contemplation of law, falsely and fraudulently made, in order to prevent a recovery in case of loss; but, in the absence of any proof of knowledge of the misrepresentation complained of, or waiver of objection on account of it by the agents of the insurer, a false statement constituting an apparent inducement to the contract will be deemed to have been made with fraudulent intent. Mace v. Insurance Company, 101 N. C., 133.\nThe Courts of this country have differed widely as to the admissibility of testimony in cases like that before us. Some have held that'parol testimony was not competent in a case to show a waiver of the requirements in the conditions of a policy, or of the warranty arising out of the application, while others have limited the power of agents to waive its requirements, in the face of a prohibitory provision in the policy, to matters not constituting essential and material portions of the contract, such as the stipulations as to proof of loss. There is a very general concurrence, of course, in the view that where the execution of a contract has been procured by the fraud of an agent of the insurer, it may be declared void upon showing the acts of the agent inducing its execution.\nThis case is distinguishable from that of Bobbitt v. Insurance Co., 66 N. C., 70, in that in the latter the plaintiff not only made a false statement, which was an apparent inducement to the defendant to issue the policy, but failed to rebut the presumption of fraudulent purpose by showing any actual knowledge of the true value of the properly on the part of the corporation acting through its agent.\nIn Dupree v. Insurance Co., 93 N. C., 240, Chief Justice Smith, delivering the opinion of the Court, said: \u201cIt was certainly competent to show this source of information possessed by the agency firm, in regard to the property included in both policies when they issued the last, as tending to rebut the charge that it was solely brought about by the fraudulent statements contained in the plaintiff\u2019s application.\u201d The evidence referred to tended to show that a sub-agent of a general insurance agent had, the year before, inspected the same property for another company for which the general agent was acting, and had issued a policy upon the valuation then declared just by the sub-agent, and the general agent had, the next year, sent the insured the policy sued on, which was issued in the name of another company upon the property destroyed by fire, but based upon the same valuation.\nUnder the principle laid down, it was eqa\u00e1lly competent and material to show that Mackey, the agent of the defendant company, knew and could have informed his principal, that the plaintiff was partially deaf, and, from the very nature of the case, could have communicated the extent of the infirmity. Being presumably in possession of the information acquired by its agent, the company is not deemed to have been induced to take the risk by the representation in the 'application that the plaintiff was not subject to any \u201cbodily infirmity.\u201d\nThe principles announced by this Court in the cases 'already cited, are supported by reason and sustained by authority. May on Insurance, \u00a7\u00a7 131 and 132; 1 Phil, on Ins., \u00a7 904.\nIn Hornthal v. Insurance Co., supra, the Court say that the policy \u201c was issued and delivered to the plaintiff, with actual knowledge, on the part of the agent, and constructive knowledge of bis principal, and must be deemed to bave been done with tbe full assent to tbe proposed increase.\u201d See, also, Collins v. Insurance Co., 79 N. C., 279; Argall v. Insurance Co., 84 N. C., 355; Dupree v. Insurance Co., 92 N. C., 417. \u201cTbe powers of the agent are prima facie co-extensive with the business entrusted to his care, and will not be narrowed by the limitations not communicated to the person with whom he deals.\u201d Insurance Co. v. Wilkinson, 13 Wallace, 222.\nSo, in the case of Cuthbertson v. Insurance Co., 96 N. C., 480 (cited by the defendant), the insured made a false representation as to the title of the property destroyed by fire, and offered no testimony to trace any actual knowledge of the facts to the defendant, or to rebut the presumption of a fraudulent intent by a waiver.\nJustice Davis, in Mace v. Insurance Co., 101 N. C., 133, says: \u201cA false statement made in the application, when the application constitutes a part of the contract, will render the policy void, pu l so will any representation of a material fact by which the company is misled, if falsely and fraudulently made.\u201d But where there is a waiver, as in the cases of Hornthal v. Insurance Co. and Dupree v. Insurance Co., supra, though the false statement be made in the application itself, it does not mislead, and it cannot be considered an inducement to the contract.\nThere was error, for which a new trial must be granted.\nError.", "type": "majority", "author": "Avery, J." } ], "attorneys": [ "Messrs. W. W. Fuller and R. B. Boone, for plaintiff.", "Messrs. J. 8. Manning and J. W. Hinsdale (by brief) for defendant." ], "corrections": "", "head_matter": "A. T. FOLLETTE v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION, OF NEW YORK.\nInsurance Policy \u2014 Suppression of Material Facts \u2014 Evidence\u2014\u2022 Contract \u2014 Application\u2014Bodily Infirmity \u2014 Notice to Agent\u2014 Notice to Principal.\n1. In an action upon an accident insurance policy, the defence was, that the plaintiff had suppressed the fact of his deafness: Held, that evidence that the defendant\u2019s agent, who took the application of plaintiff, knew of this defect, was competent, although, in his application, the plaintiff stated he was free from any bodily infirmity.\n2. Actual knowledge to the agent is constructive knowledge to the company; hence, the latter is deemed to have waived all objection to deafness as a bodily infirmity.\nThis was a civil action, tried at January Term, 1890, of the Superior Court of DurhaM Count\\r, before Armfield, J.\nThe plaintiff gave evidence of his injury, which was shown to have been accidental and to have happened as set out in the complaint, and that his hand was amputated above the wrist in consequence of said injury. He testified that he was partially deaf; had been so for thirty years to the same extent; that he was in good health, and his deafness did not interfere with the pursuit of his business; that he did not use any mechanical applications to enable him to hear conversation, though a person speaking to him had to elevate his voice above the ordinary conversational tone to enable him to hear; that when he took out his insurance, his deafness was just as it had been for years, and is now, and was at the time of his injury; in addressing the witness (plaintiff) Judge and counsel had to raise their voices to a loud pitch to enable the witness to hear the questions; he could not hear questions asked in the tone used to other witnesses; that he was well acquainted with the local agent of defendant, who took his application and solicited his insurance, and had often conversed wdth him ; that the said agent had a chance to know the extent of his deafness when he applied for the policy3-; that no question was asked about deafness, and nothing said about it when he made his application or received his policy; that he did not think of his deafness as a bodily infirmity, and did not intend to suppress the fact of his deafness, as aforesaid.\nPlaintiff introduced and read the following letter from the Secretary and General Manager of defendant\u2019s company, having explained that the said letter was a reply to one written on September 10th, by himself, under the assumed name of Samuel C. Moore :\nThe United States Mutual Accident AssociatioN,\n320, 322 and 324 Broadway, New York.\nP. 0. Box, 851. September 17, 1889.\nSamuel G. Moore, Esq., Asheville, N. C. \u25a0\nDear Sir: \u2014 I have your favor of 10th instant, and, in reply, beg to say that, from the description you give of your deafness, we do not think that it will debar you from becoming a member of the Association. Fill out the inclosed application and forward it to us, together with your regular membership fee of $5, and, on receipt, we shall be pleased to issue a policy to you in this Association.\nTruly yours,\nJames R. Pitcher,\nSecretary and General Manager.\nJ. J. Mackey, local agent of defendant, testified that he took plaintiff\u2019s application for membership in defendant\u2019s company and delivered him the certificate of policy. Plaintiff proposed to ask the witness if he knew the extent of plaintiff\u2019s deafness at the time of the application and of delivery of certificate or policy. This question was, under objection of defendant, excluded, and plaintiff excepted.\nFirst Exception. \u2014 Plaintiff then asked said witness if he had frequently conversed with plaintiff prior to said application, and if any questions were asked plaintiff by him, at time of application, about deafness, or plaintiff\u2019s attention drawn to it in any way. This question was excluded, and plaintiff excepted.\nSecond Exception. \u2014 Plaintiff proved by his wife that one Frank, adjuster of defendant, who came to see plaintiff after his injury and the amputation of his hand, said that the company was satisfied no fraud or concealment was intended by plaintiff in not stating in his application that he was deaf.\nDefendant introduced the certificate, or policy, and the application.\nHis Plonor stated that he would instruct the jury that plaintiff was not entitled to recover anything, upon the ground that plaintiff\u2019s deafness was a \u201cbodily infirmity,\u201d which he had not disclosed in his reply to the questions printed in the application, and that this was so, notwithstanding such suppression was not fraudulent or intended, and though his deafness did not contribute to his injury.\nThird Exception. \u2014 To this ruling and intimation plaintiff excepted, and, in deference thereto, submitted to a judgment of nonsuit and appealed to the Supreme Court.\nThis cause coming on to be heard before me, in deference to the Court plaintiff submits to a judgment of nonsuit, and it is adjudged that the plaintiff take nothing by his suit, and the defendant go without day, and recover of the plaintiff and his prosecution bond the costs of this action, to be taxed by the.Clerk.\nThe enclosed, application is identical with the one signed in this case, and made by plaintiff, except that it is blank.\nSection 12 of the application was as follows:\n\u201c12. I have never had, nor am I subject to fits, disorders of the brain, rheumatism, or any bodily or mental infirmity, except as herein stated. Had an attack of rheumatism six years ago.\u201d\nTwo of the conditions of the policy were as follows:\n\u201c5. The application for membership, together with the classification risks endorsed hereon, are made a part of this certificate. Fraud or concealment in obtaining membership, or attempts by like means to obtain indemnity, shall make the membership and this insurance absolutely void. The Association may cancel this insurance and membership at any time by refunding to the insured (member) herein named the membership fee, together with any balance to his credit deposited for assessments in advance. This membership and insurance, unless sooner terminated by forfeiture, cancellation or resignation, shall cease and determine when the insured (member) reaches the age of sixty-five years.\n\u201c10. The provisions and conditions aforesaid, and a-strict compliance therewith during the continuance of this certificate and insurance, are conditions precedent to the issuing of this certificate and to its validity, and no waiver shall be claimed by reason of the acts of any agent, unless such act or waiver shall be specially authorized in writing over the signature of the Secretary of this Association.\u201d\nMessrs. W. W. Fuller and R. B. Boone, for plaintiff.\nMessrs. J. 8. Manning and J. W. Hinsdale (by brief) for defendant." }, "file_name": "0240-01", "first_page_order": 276, "last_page_order": 283 }