#### TYSON v. VICTORY INDUSTRIAL LIFE INS. CO.

No. 17596.

Court of Appeal of Louisiana. Orleans.

Nov. 3, 1941

On Rehearing Nov. 17, 1941.

Ernest J. Robin, of New Orleans, for appellant.

Charles J. Mundy, of New Orleans, for appellee.

SIMON, Judge.

Dora Tyson, the beneficiary of a policy of industrial insurance issued by the defendant, Victory Industrial Life Insurance Company, upon the life of Estella Brum-field, brought this suit to recover from it the avails of insurance, which she asserts to be the sum of $201. She alleges the issuance of the policy by the defendant on August 7, 1939; that the insured died on October 8, 1940, while the policy was in full force and effect; and that, notwithstanding amicable demand, payment of the proceeds has been refused by the defendant.

The defendant admits the issuance of the policy, the insured’s death and that all premiums have been fully paid. It resists liability on the ground that the assured was guilty of fraud in the procurement of the insurance in that she wilfully misrepresented the true condition of her health and *604made false answers to questions propounded to her at the time she made written application to its agent for the issuance of the policy. It charges that, whereas Brum-field stated in her written application that she had never suffered with disease and had never been treated in any hospital, in truth and in fact, she had been admitted and treated at the Charity Hospital of New Orleans on five separate occasions for a disease of fifteen years’ standing, and from which she subsequently died, she having full knowledge of this ailment at the time she applied for the insurance.

After a trial in the lower court on this issue, there was judgment in plaintiff’s favor for the amount claimed and the defendant has prosecuted this appeal from the adverse decision.

In support of the charge of fraud and wilful misrepresentation on the part of the assured, the defendant submitted the testimony of its agent, Albert Simpson. He testified that he propounded the questions contained in the written application to one “pointed out” to him as Estella Brumfield, and the answers thereto were written in by him; that he had one Sophie Kennedy, who was then present, and who, according to his understanding, transacted all business for Dora Tyson, plaintiff, sign Estella Brumfield’s name on the written application; that he thereafter delivered the policy at 2123 Clio Street in New Orleans, the address from which the application was procured.

Plaintiff, a sister of the assured, testified that she resided at 2123 Clio Street and that, at the time the written application was obtained, Estella Brumfield resided at 1212 Freret Street; that Simpson, defendant’s agent, called at her home and there filled in the application; that Estella Brum-field was at no time present, she then being at work; that the only question asked by its agent was the name and age of the assured, which she furnished, all other answers contained in the application being filled out by him; that the only other person present was a woman named Sophie Kennedy, the latter signing the assured’s name on the application at the request of the agent.

Plaintiff’s testimony is fully corroborated by the testimony of Sophie Kennedy, she also positively stating that, at the time of the filling out of the application, Estella Brumfield was not present; and that she, Kennedy, signed the name of the assured to the application, as requested.

We are fully convinced that the charge of fraud and wilful misrepresentation cannot find the slightest support in the foregoing testimony. The record discloses that defendant’s agent had severed his connections with another insurance company the day previous to obtaining the application in question, this being his first day of employment with defendant. As a consequence, he admits that he was “most eager” to obtain business, and that, having previously obtained other applications at plaintiff’s home, he concluded that that place was preferable .rather than soliciting, as he says, “cold-business”. Though he admits having known Estella Brumfield for over ten years, having seen and spoken to her on many occasions, he testifies that the assured was “pointed out” to him at the time the application was obtained, and that the questions called for therein were propounded to one “he supposed”, or who “apparently”, was Estella Brumfield. Certainly, personally knowing the assured, it is incredible that there would have been any need for identification, or indulgence in supposition or uncertainty.

Against this rather unbelievable version of this agent, we have the positive testimony of plaintiff and the witness who, it is admitted, was present at the time, and from which flows every appearance of sincerity and truthfulness. We are fully convinced that the assured was not present at the confection of the application in question, and that all answers therein recorded were the agent’s own will and initiative, prompted, undoubtedly, by the commission to be earned gnd his desire to display to his employer his skill and cleverness as an aggressive solicitor. If any fraud was perpetrated, certainly it was that of its agent alone — fraud in submitting to his company a written application containing self-conceived representations of the health of the insured. Unquestionably, no stigma of fraud or wilful misrepresentation can be laid at the assured’s door.

It is now well settled that the knowledge of the agent is that of his principal. Bordelon v. National Life & Accident Insurance Company, La.App., 187 So. 112. In the case at bar, defendant does not question its agent’s conduct in the performance of his duties, or that he exceeded the scope and authority of his employ*605ment. Neither does it charge a conspiracy to defraud between its agent and the insured. The fraud and misrepresentation charged being solely that of its agent, it cannot now be heard to avoid liability upon a policy issued by it and upon which it has received all premiums due.

Though its sole defense was an avoidance of liability upon the ground of fraud, counsel for defendant now urges before us, in argument and brief, that defendant’s liability under the policy is limited, in any event, to one-fourth of the full death benefit, or $50.25. The reason urged in support of limitation of liability is that the insured died of a chronic disease within eighteen months from the date the policy was issued.

The evidence shows the contract was issued on August 7, 1939, and that the insured died on October 8, 1940.

 The condition of the policy upon which the defendant relies to defeat recovery of the full death benefit reads as follows:

> *“2.** * * This contract shall be void if the Insured before its date, has been rejected for insurance by this or any other Company, or has been attended by a physician for, or has had before said date any scrofula, tuberculosis, paralysis, high blood pressure, diseases of the respiratory organs, cancer, epilepsy, or any disease of the brain, heart, liver or kidneys, syphilis or any venereal disease, * * *, *or if the Insured shall die from any of the aforementioned diseases or any chronic disease contracted or occurring within eighteen months from the date of*policy, *one-fourth of the stipulated sum othenvise payable will be paid.** * * ” (Italics ours.)

Plaintiff does not question the fact that the insured died of chronic ulcerative colitis with other diseases of the liver and attending complications' more than six months, but less than eighteen months, after the issuance of the policy. She asserts that there should be no limitation of recovery in view of another clause in the policy which reads as follows :

> “One-half of the above (full death benefit) if death occur within six months from date, and the full amount if death occur thereafter, except that in event of death from accident within six months from date full amount shall be payable.”

Plaintiff contends that the foregoing condition is repugnant to and in conflict with the condition relied upon by defendant and that, since this provision states that the policy is one in full benefit after six months from its date of issuance, we should hold that it prevails over the other condition.

We are unable to discern any conflict or repugnancy between these two provisions. That' relied upon by defendant declares that it shall pay no more than one-fourth of the full death benefit should death occur more than six months, but less than eighteen months, after the date of the policy, if death results from one of the named ailments. The other stipulation, relied upon by plaintiff, merely fixes the amount of the death benefit in case death should result from any cause within a fixed time from the date of the issuance of the policy. On the heading of the policy in question we find in bold type the following:

> “Hereby insures the life of the person designated in the following schedule, and promises to pay the sum of money stipulated in such schedule, *sub feet to the conditions and privileges contained on this and the succeeding pages hereof and which constitute a part of this contract.’1*(Italics ours.)

Upon examination of the policy, we find that the schedule, referred to in the last quoted proviso, therein fixes and makes payable the amount of the full death benefit after six months has elapsed from the date of issuance. The words “ * * * to pay the sum of money stipulated in such schedule, subject to the conditions and privileges contained on this and the succeeding pages hereof * * * ” were obviously made part of this contract for the purpose of avoiding a conflict between the various conditions contained therein, and clearly exhibit that, because of the other provision of the policy, the full death benefit does not necessarily become payable even though it be shown that the policy has been in full force and effect more than six months. Here, the stipulation of the policy relied upon by defendant is dependent solely upon the death of the insured within a fixed time as a result of named diseases. We are convinced that its provisions are decisive of the issues presented. Our jurisprudence is well settled to the effect that such a condition is not unreasonable and will be enforced. Gray v. Louisiana Industrial Life Insurance Company, La.App., 193 So. 278; Moore et al. v. Southern Life & Health Insurance Co., La.App., 195 So. 857.

*606Plaintiff contends that, having failed to. plead a limitation of recovery as a defense, defendant should not now be permitted to do so. The obvious answer to that contention is that plaintiff is seeking recovery upon a contract of insurance and her ultimate recovery must either stand or fall upon its terms and conditions. The policy of insurance being the source of her claim, she is bound by its provisions and is entitled only to such relief as the contract specifically affords. Defendant, having denied liability, and having prayed for all general and equitable relief, it is fully warranted, should recovery be allowed, in urging before us the enforcement of the contract in accordance with its provisions.

For the reasons assigned, the judgment appealed from is amended by reducing the amount awarded to Dora Tyson from the sum of $201 to $50.25, and in all other respects the said judgment is affirmed; ap-pellee, Dora Tyson, to pay the costs of this appeal, and all other costs to be paid by the defendant.

Amended and affirmed.

On Application for Rehearing.

PER CURIAM.

On November 3, 1941, we rendered a final opinion and decree in this matter. The case came from the First City Court of New Orleans, and therefore application for rehearing could not be considered unless presented prior to the expiration of the fifth calendar day after the rendition of the decree. See Act 16 of 1910, Sec. 1, Dart’s Statutes, Sec. 1450.

At 3:58 P. M. on November 10, 1941, there was delivered at the office of the Clerk of this court a collect telegram reading as follows:

> “Dora Tyson vs Victory Ins. Co.

> “Court of appeal Civil Courts Bldg.

> “Please grant a rehearing in above case on question of costs.

> “Charles J. Mundy Touro Infirmary.”

The Charles J. Mundy, whose name appears in this telegram, was counsel for plaintiff-appellee. May we consider this telegram as an application for a rehearing?

Par. 2 of Rule 10 of this court requires:

> “The application for rehearing shall be made by petition, filed within the legal delay and containing a statement of the points of law and fact upon which it is founded. * * **>>*

This rule is based on Art. 912 of the Code of Practice, which provides that — ■

> “A party dissatisfied with the judgment may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.”

The question then is: Does such a telegram constitute a petition, and if so, does it contain *the*essentials required by our rule and by the article of the Code of Practice?

We find no case in the jurisprudence of this state which sets forth what is a petition within the contemplation of that article of the Code of Practice. We do find that the Code itself defines a petition in Article 171, and Article 172 makes many requirements as to what *must be*set forth in a petition. Again we find no jurisprudence on the question of whether these articles apply to a petition for a rehearing, but we do find in Alfred Hiller Co., Ltd., v. Hotel Grunewald Co., Ltd., 138 La. 305, 306, 70 So. 234, that the Supreme Court has held that these articles do not apply to a petition for an appeal.

In Armbruster v. Behan, 3 Orleans App. 184, this court considered the question of whether or not the so-called petition for rehearing complied with the rules of this court and with the cited article of the Code of Practice, and held' that since the said so-called petition did not set forth the grounds on which it was based, it did not constitute a petition within the contemplation of the article of the Code and of the Rule of this Court.

In Lacroix v. Camors et al., 34 La.Ann. 639, the Supreme Court considered a similar question in which a petition for rehearing stated that thé grounds would be set forth in a printed brief to be filed. When this petition was filed there was inadvertently signed in the Supreme Court an order permitting the filing of the said brief, and later the brief was filed setting forth the grounds on which the application for rehearing had been based.

When the court came to consider whether the petition constituted an application within the contemplation of the rule of the Supreme Court and of the article of the Code of Practice, the majority of the court held that it did not. See also Brown v. Stroud, 34 La.Ann. 374.

*607In Walker v. Mills Engineering Construction Co., 153 So. 344, 345, the Court of Appeal for the First Circuit considered an application for rehearing which did not specifically point out any error. The court held that the application was not in proper form, since it “does not point out specifically any error in the opinion and judgment handed down herein.”

For the reasons set forth in these authorities, that is to say because no reasons are set forth in the telegram, we believe that the said telegram cannot be considered as a petition within the contemplation of our rule and within the contemplation of Art. 912 of the Code of Practice. Furthermore, we are of the opinion that a telegram, which does not contain the signature of the attorney, cannot be considered as a petition. Further, we consider it a novel proceeding to send to the court collect telegrams.

Application not considered.