Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-06-08
Reverses Judgement Of
The ]. S. Circuit Court.
Sets Aside Verdict in Thorne
Insurance Case.
Case Goes Back to Circuit Court
For Further Proceedings.

tIlt cast VI IiVti loi hS NSAoaA- / nc
Travellers Insurance Company:
Lowell. j. This was an action at law
to recover on two policies of accident in
surance. Each insured the plaintiff
provided That all of the war
ranties following made by the insured
upon acceptance of this policy are true.
The defence was breach of the follow
ing warranties contained in the policy {:
IL. No application ever made by me for
d aeal1n or ACCIDENT Insurance mas am oef in
sound condition mentally and physically;
my hearing hearing or vision is not I'M
paired; | have never had nor am l. now
suffering from or subject to fits, dlsor-
ders of the brain, or any bodily or men,
tai infrmity or deformity.
The policy was issued under the follow
pointed agent of the New York Life In
sufance Company, and of the EMPLOYERS
Liability insurance Company, called on
the plaintiff and urged him to take out
some insurance with Burns Thorne told
Burns that he would take $4,000 insur-
ance with the latter $1,000 combination
life and health insurance and 5000 acci-
dent insurance. From an old insurance
policy which was handed him by the
plaintiffs clerk. Burns testified that he
got the date of his (Thorne's) birth,
the occupation and the data that was
necessary. to file the application. He
then filled out an application blank and
obtained $4,000 insurance in the Casualty
Company He was asked why he did not
Stl lHt dDONt-IutIitlOllcu lIISui amy ilpii
his own company rather than from the
Casualty Company, and answered Il
didn't want il. But he went thereupon
to his own company. the Employers. and
apparently to AN agent of rank higher
than his own, and presented an appica-
tion for the rest of the $4,000. This APP
plication was refused. He then went to
the defendants office and presented an
application in part as follows: Printed'
mo application ever made by me for
life. health or accident insurance has
been declined; no life, health or accident
policy ever issued to me has ben can
celed; nor has any renewal thereof been
refused by this or any other company
or association-except as herein stated
edge" Printed) MY habits of life are
correct and temperate. ] am in sound
condition mentally and physically. My
hearing or vision is not impaired. | have
never had nor am ] suffering from or
subject to fits. disorders of the brain, or
any bodily or mental inflrmity or de-
Burns writing Yes" 1t was not dis
puted that the answer last mentioned
was intended To deny the PLAINTIFFS in
trinity and deformity. The application
commend this risk +. S. Burns. Broker.
Solicitor. Agent or Snb-Ascnt.' There
upon the policies We're made ont ana
handed to Burns. The plaintiff appears
ance; he sent a check for the premiums
10 Burns. who endorsed ii to the defend
ants agent The agent paid Burns his
commission. and Burns delivered the poll
cieS to the plaintiff.
The plaintiff thereafter had an accident
to his eye within the terms of the poll
cics, and the defendant refused to pay
the sum insured because of the plaintiff
infrnity or defOrmity. The other defence
of former refusal OF application was not
raised in the defendants original letter,
perhaps because the fact was then I'M
known.
The plaintiff was about so years old
when the policy was issued. He was
born without fingers on his right hand.
He testified that his right eye had be
come infamed through a cold caught
while swimming as boy: that the eye
its removal had been suggested by "a
very eminent surgeon: but that he did
not notice any impairment of sight.
Burns testiged that he had noticed it
was an imperfection on the lower side of
one of the eyes-a small protection
Snndry instructions We're asked and
trial to which the defendant excepted.
The jury returned a verdict for the plain
tiff The defendant sued out this writ OF
error. In deciding the case, we ind our
selves obliged to consider one PROPOSE
ton which makes an answer to all other
questions unnecessary. Should the
learned judge upon the evidence have di-
rected a verdict for the defendant? If
he should have done so, all other rulings
and all admissions and exclusions of evil
dence become immaterial.
The plaintiff was deformed in his right
hand. In the language OF the applica-
tions and of the policies, he was suffer
ing from bodily deformty." 1t is hard
to believe that he was not suffering also
from impaired vision and deformity of
the eye. If , however. his testimony be
taken to mean that his vision was wholly
unimpaired that may have been a ques-
ton for the jury, and we viii refer to 1t
no further An application for insurance
made by the plaintiff through Burns had
been refused before the policy sued on
was applied for. and on the same day.
Two statements of the application were
therefore false Two warranties of the
policy We're broken. The plaintiff testi-
fed that he knew nothing about the APP
plications. and did not examine the poll
cies. The defendant did not dispute the
plaintiffs personal good faith. At the
argument before us the plaintiff hardly
denied the breaches of warranty, but
waived the breach through the knowledge
and conduct of its agent Burns: In sup
port of his argument the plaintiff relied
of Maine in Thorne VS.. Casualty Com
pany, decided and reported in a suit
brought by this plaintiff for the accident
here in suit on the policy Of the Casualty
Company above mentioned The Casual
ty Company in that suit raised the de-
fence of deformity, though not that Of
former refusal of application. The Maine
court sustained a verdict for the plain
tiff, and said
',The reply of the plaintiff is that the
company Is estopped regards this
special matter of defence. because of
agents knowledge THE question then
| is should the knowledge of Burns in pro-
curing this policy he regarded as that Of
| the defendant? We think 1t should. nm
der the doctrine of estoppel X. S. Chap
| ter 49, Sec. 90. provides as follows: All
notices and processes which. Mnder any
law. bylaw or provision of the policy
any person has occasion to give or serve
on any such company. may be given to
| or or served on its agent, or ON the COM
| missioner, as provided in the preceding
! section, with like effect if given or served
, on the principal Such agents and the
| agents of all domestic companies shall be
| regarded as in the place of the company
| in all respects regarding any insurance
| effected by them. The company Is bound
| by their knowledge Of the risk and of all
| matters connected Herewith. Omissions
| and misconceptions known to an agent
| shall be regarded as known to the com
| pany, and waived by it as If noted in the
| policy. The defendants home office
| was in New York City. Its representa-
| tive in this State was the corporation.
Macomber. Farr & Written. Through
this corporation it transacted its bust
| ness and dealt with all its policy holders
! in Maine. This corporation appears to
| have been more than general agent:
| 1t had authority to Issue policies difect
| from its Office and did so Issue the policy
| In question. The same day that the ap-
| plicatiOn was taken to this .Office, thi,