Jurgens v. New York Life Insurance

Temple, J. The appeal is from a judgment of non-suit and from an order denying a new trial. The action was brought to recover fourteen hundred and sixty two dollars, paid as the first annual premium upon a policy of life insurance for twenty-five thousand dollars, plaintiff claiming that the contract of insurance had been rescinded by him. He claims to have rescinded because he was induced to receive the policy, and pay the first premium, by the false and fraudulent representations of defendant’s agent, one Eaton. The policy issued to him was precisely such a policy as he had applied for in writing, but the written application was made out by Eaton, and Eaton had assured him, and induced him to believe, that the policy would be an endowment policy for twenty-five thousand dollars, which would be paid him at the end of ten years, or, in case of his death, within that period to his wife Katherine, whereas the policy delivered to him only entitled him to an endowment of three-tenths of the sum of twenty-five thousand dollars, or seven thousand five [163]hundred dollars. There was a similar misrepresentation in regard to the surrender value of the policy.

In the written application of plaintiff he stated: “Inasmuch as only the officers of the home office of said company in the city of New York have authority to determine whether or not a policy shall issue on any application, and as they act on the written statements and representations referred to, no statements, representations, or information, made or given by or to the person soliciting or taking this application for a policy, or by or to any other person, shall be binding on said company, or in any manner affect its” rights, unless such statements, representations, or information be reduced to writing and presented to the officers of said company, at the home office, in this application.”

There was also a stipulation that the policy to be issued should not be in force until the premium was actually paid to the agent of the company and accepted during the life and good health of the insured.

The application was referred to and made part of the policy.

■ The application was made September 8,1893. Eaton was a mere solicitor for the company, Mr. Hawes being the agent of defendant for California. To pay the premium plaintiff executed a promissory note payable to his own order, indorsed in blank, and delivered it to Eaton. Eaton sold the note to the Central Bank of Oakland and paid the money, less his commission to defendant’s agent, who, on the sixth day of October, sent the policy to plaintiff by Eaton.