Price v. Mut. L. Ins. Co. of Baltimore

167 A. 233, 109 Pa. Super. 419, 1933 Pa. Super. LEXIS 316

• Court: Superior Court of Pennsylvania
• Decided: April 20, 1933
• Docket: Appeal 269
• Status: Published

Opinion

Opinion by

Keller, J.,

The plaintiff took out a policy of insurance in the defendant company on the life of her nine year old daughter, Buth. It was, in form, what is commonly called an industrial policy. The premium was payable weekly. No written application for insurance was attached to the policy, which contained, inter alia, the following conditions, subject to which it was issued:

“Second. This policy is void until the same is actually delivered to the insured in person while in sound health ...... Fifth. Agents (which term includes superintendents and assistant superintendents) are not authorized to make, alter or discharge contracts, or waive forfeitures.”

When the policy was applied for and issued the child was in a hospital, suffering from osteomyelitis. She had been there for nearly six months, and had had numerous operations because of the disease. She remained continuously in the hospital until her death from the same disease, sixteen days after the delivery of the policy to the beneficiary, her mother.

The agent of the company, who solicited the risk and delivered' the policy, knew of the child’s condition, of her unsound health, of her being in the hospital and of her then suffering from the disease from which she died; apart from his knowledge the company did not know of the insured’s unsound health when the policy was issued and delivered. The agent was a mere soliciting agent, authorized to solicit risks, deliver policies when issued by the company and collect premiums.

The question involved is whether the knowledge by this agent of the insured’s unsound health was so far notice to and knowledge of the company as to amount to a waiver of the condition as to the sound health of the insured or estop the company from setting up the condition as a defense to the policy.

"We had occasion recently to examine the subject somewhat fully in the ease of Youngblood v. Prudential Ins. Co., 109 Pa. Superior Ct. 20, 165 Atl. 666, and decided, in similar circumstances, that knowledge by the soliciting agent that the insured was not in sound health when the policy was issued and delivered did not bind the company nor prevent it from defending on that ground. It is not necessary to restate the grounds for our so holding. The same ruling must be applied here.

Following the decision in the Youngblood case, the judgment is reversed and is here entered for the defendant.