Madsen v. Maryland Cas. Co. of Baltimore

THE COURT.

A rehearing was granted in this case for further consideration of the principal question involved,— namely, the power of a mere soliciting agent of an insurance company to effect the waiver of a warranty exacted from the insured by the insurer, either expressly, or, as here, by him

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self writing the application for insurance and embodying a known false statement touching such warranty therein. Still further, a rehearing was granted because the identical question was before the court in another case, that of

Sharman

v.

Continental Ins. Co.,

167 Cal. 117, [138 Pac. 708], The decision in that case is controlling in this. It is to the effect, as there fully expressed, that such soliciting agent has not the power to waive conditions and warranties. The opinion of the district court of appeal hereto appended is, therefore, adopted, and the judgment appealed from is reversed.

“Appeal from judgment and order denying defendant’s motion for a new trial.

“Plaintiff recovered judgment against defendant for the sum of $1,300 upon an accident insurance policy.

“One Graff, a soliciting agent for defendant, solicited the insurance from plaintiff who was very deaf, as was well known to said Graff. The application for the policy was filled out by Graff, and without being signed, or read to or by plaintiff, was sent to the general agent of defendant. It contained a warranty to the effect that plaintiff was neither partially nor totally deaf. A policy was issued by the defendant and sent to plaintiff through the mail in August, 1904. It remained in his possession until and after the accident, which occurred in January, 1911.

“Among other things it in terms stated that it was issued ‘in consideration of the warranties made in the application . . . (copy, of which application is indorsed herein and made a part hereof).’

“A copy of the application was indorsed on the policy. The policy also contained the following condition: ‘An agent has no authority to change this policy, nor 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 thereto signed by the president or secretary of the company, expressing such change or waiver. ’