Bayley v. Employers' Liability Assurance Corp.
Before: Dyke
Synopsis
Insurance—False Statement in Application—Knowledge of Facts—Waiver.—An insurance company issuing a policy with knowledge that statements made in the application are false, waives the right to object thereto.
Id.—Application for Accident Insurance—Omission bt Aoent of Known Facts—Previous Compensation.—Where an apparently false statement, made in an application for a policy of accident insurance, that the applicant had “never received compensation for any accident except as hereinafter stated,” was caused by the omission of the agent who drew it, to state the “names of companies or associations, with amount of compensation,” provided for in the form of application, and where the agent omitted to request a statement thereof from the applicant, and the facts that he had received previous indemnity for accidents from the same and other companies were known to the officers of the company, at the time of the application* objection to the falsity of the statement is waived, and it can not vitiate the policy.
Id.—Unknown Payment by Company Known to Have Paid Indemnity.—Where the officers of the insuring company knew that a previous large páyment of indemnity for an accident had been made to the applicant by another company, the fact that ■another prior and smaller payment made to him by the same ■company was unknown to them, cannot affect their waiver of a true statement not requested of the applicant, as to the amount of compensation previously received.
Id.—Waives op Communication.—Neither party to a contract of insurance is bound to communicate information of matters of which the other waives communication, except in answer - to inquiries.
Id—Construction op Application and Policy—“Compensation” —“Indemnity.”—The term “compensation,” used in an application for an accident policy, requiring a statement of the amount of “compensation” previously received for accidents, is not to-be construed in a popular sense, as including “indemnity,” where the application and policy used the word “indemnity” with exclusive reference to weekly payments, to be made as indemnity during total disability to prosecute business, as the result of an accident, and never with reference to payments to be made for loss of life, limb, or eye.
Id.—Construction Against Insurer.—Where the language of an application and policy, or of a policy, may be understood in more senses than one, it is to be construed most strongly against the insurer and in favor of the insured.
VAN DYKE, J. This is an action on a policy of accident insurance. The case was tried with a jury in the court below, and the verdict and judgment went for the plaintiff. The appeal is taken from the judgment and order denying a new trial. The assured, George B. Bayley, was killed by an accident, and the plaintiff, his widow, is the person in whose favor the policy ran.
There are two questions presented by the appellant: 1. That the-assured represented, in his written application for the policy, that he had never proposed and been declined insurance by an accident insurance company, and that this was not true; 2. That he represented in said application that he had never received compensation for any accident, whereas he had in November, 1892, and also in the year 1886, received compensation on account of injuries he had sustained by previous -accidents.
The first defense is eliminated from consideration here by the fact that the verdict of the jury was against the defendant, and the evidence bearing upon that defense was materially conflicting, and hence the verdict cannot be disturbed.
As to the second defense: In the application the fifteenth statement is as follows: “I have never received compensation for any accident except as herein stated (names of companies or associations, with amount of compensation)”; and there was no statement as to any compensation being received. It was shown, however, that the deceased had been paid for an accident in 1892, and also in 1886. But at the time of the application for the policy in question the defendant company and its officers knew that the assured, Bayley, had received payments in 1892, not only from its own company, but from three others. Mr. Okell, the general manager of the defendant on this coast, [349]testified: “I understood that other payments had been made to him. Q. Did you ever notify the company or any of the officials of your company, outside of your own agency here in San Francisco, that such payments had been made? A. Ho, it was not necessary”; and he further testified: “I knew in Hovember, 1892, that Bayley bad been paid by other companies weekly indemnity claims under accident policies held by him. I knew that other companies had paid him, but I did not remember the names of the companies.....I knew Mr. Bayley in his lifetime. I had a conversation with him at or about the time that the policy issued in this cas'e was applied for, in regard to the issuance of it. He came into my private office, and asked me if I would be willing to issue a twenty thousand dollar policy to him, and, knowing no reason why I should not, I said I would. I should think it was a few days before the issuance of the policy.”
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