Wilkinson v. Union Mut. Life Ins.

29 F. Cas. 1268, 2 Dill. 570

Opinion

DILLON, Circuit Judge.

I think the motion for a new trial ought to be overruled. The special findings of the jury dispose of every defense on its merits against the company, except the one relating to the age of the mother of the assured at the time of her death. The special verdict on that subject is fully warranted by the evidence, and being so, the company is justly estopped to make the defense that the applicant misrepresented or untruly stated the age at which her mother had died.

In propounding the questions to the applicant, and in taking down her answers, the local agent acted for his company, and if the applicant made truthful answer’s, as found ’by the jury, and the agent wrote down the answers on that subject, which appear in the application, without the knowledge of the applicant, and without being misled by her, acting upon his own judgment, why should not the mistake of the company’s agent be visited on the company, rather than on the plaintiff? I am aware of the conflicting views which different courts have held on this subject, but the one above indicated is well supported by adjudged cases, and is the one towards which, as it seems to me. the judicial sentiment of the country is rapidly tending. Rowley v. Empire Ins. Co., 36 N. Y. 550; Viele v. Germania Ins. Co., 26 Iowa, 9; Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 216; s. c. 7 Am. Rep. 122, and cases cited in note; Geib v. International Ins. Co. [Case No. 5,298]; Wilkinson v. Connecticut Life Ins. Co., 30 Iowa, 119, which was an action by the present plaintiff on another policy. Judgment for plaintiff.