THE 244 INSURANCE LAW JOURNAL. REPORTS OF DECISIONS RENDERED IN INSURANCE CASES IN THE FEDERAL COURTS, AND IN THE STATE SUPREME COURTS. WALTER S. NICHOLS, Editor. VOLUME XXXVII. NEW SERIES, VOLUME XVII. NEW YORK: PUBLISHED BY C. C. HINE'S SONS COMPANY, 100 WILLIAM STREET. 1908. THE INSURANCE LAW JOURNAL. VOLUME XXXVII. 1908. [NEW SERIES, VOLUME 17.] REPORTS OF DECISIONS RENDERED IN INSURANCE CASES IN THE FEDERAL COURTS, AND IN THE STATE SUPREME COURTS. From certified transcripts in our possession. SUPREME COURT OF CALIFORNIA. IVERSON V8. METROPOLITAN LIFE INS. CO.* The application stipulated that the answers were true, and were the basis of the contract, and if false the policy should be void; that only the officers had authority to determine whether the policy should issue, and no statements of the soliciting agent should be binding unless presented in writing to the officers. The applicant falsely stated that he has never had paralysis, while the agent had knowledge to the contrary. Heid, That knowledge by the company would be a waiver of the misstatement, but such knowledge of the soliciting agent, when not communicated to the company, was not knowledge of the latter. The agent had no authority to waive the misrepresentation. Held, That the issue of a policy under such conditions was not a waiver of the misrepresentation. In Bank. Appeal from Superior Court, Los Angeles County. Action by Annie P. Iverson against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals. PORTER, SUTTON & CRUICKSHANK, for Appellant. *Decision rendered, Aug. 20, 1907. LORIGAN, J. This action was brought by plaintiff as beneficiary to recover upon two policies of life insurance issued by defendant in favor of James E. Iverson, her husband. The case was tried by the court, and from a judgment in favor of defendant, plaintiff appeals; the appeal being presented on the judgment roll. The applications for both policies of insurance, which were made and signed by the assured, contained the following * * * (2) I have never had any of the following complaints or diseases: Apoplexy, asthma, bronchitis, * hemorrhage, insanity, * *paralysis, pneumonia, rheumatism. * * * (12) I agree that this application has been made, prepared and written by myself, or my own proper agent, and that inasmuch as only the officers at the home office of the company in the city of New York have authority to determine whether or not a policy shall issue upon any application, and as they act on the written statements, answers, warranties and agreements herein made, no statements, promises or information made or given by or to the person soliciting or taking this application for a policy, or by or to any person, shall be binding on the company or in any manner affect its rights, unless such statements, promises or information be reduced to writing and presented to the officers of the company at the home office. And I further declare, warrant and agree that the representations and answers made above are strictly correct and wholly true, that they shall form the basis and become part of the contract of insurance, if one be issued, and that any untrue answer will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health. The policies issued were based on these applications and contain the following provision: This policy is void if any of the statements or warranties in the application for this policy be not true. The court found that at the date of the policies Iverson was alive and in sound health, and that he and plaintiff had complied with all the terms and conditions of the policy to be performed by them, except as further stated in the findings, and in that regard the court made the following finding: "(3) The defendant issued the said policies of insurance, induced by the warranties and agreements made in the application, a copy of which is attached to the said policies. * (7) The statement made by said James E. Iverson in his application that he had 'never had any of the following complaints or diseases, to wit: * * * * paralysis, pneumonia, rheumatism * Apoplexy, asthma, bronchitis, hemorrhage, insanity, * * * *'-was untrue, in this: that he had had a partial paralysis in August, 1900, and was seriously ill at that time from said stroke of partial paralysis, and was attended by Dr. C. A. Briggs." The court further found: "(8) That Harvey L. Clark was the agent who solicited the said James E. Iverson to take an insurance policy with the defendant company, and that he was an agent for the purpose of soliciting insurance only; that he had known James E. Iverson for more than two years, and at the time he solicited said insurance, and at the time of making said application, he knew that James E. Iverson had had said stroke of partial paralysis, and communicated said fact to his immediate superior, who was a soliciting agent of the defendant in charge of the other soliciting agents in Pasadena, but who was under the general agent in Los Angeles, to whom he reported; but the fact that said James E. Iverson had had a partial stroke of paralysis as aforesaid was not communicated to said general agent at Los Angeles, or to any other agent or officers of the defendant company." As a conclusion of law the court held "that the said policies of insurance were null and void by reason of the statement of said James E. Iverson in his application that he had had no paralysis". There can be no question but that the written answers in the application for insurance, made by the insured in response to the questions asked him relative to whether he had ever had any of the diseases specifically mentioned in the questions, were material to the risk assumed by the respondent; that the contract of insurance was based on them, and on the agreement of the insured that if any answer was untrue the policy to be issued thereon should be void. As the insured stated in response to an inquiry on the subject in his application that he had not had paralysis, and this statement was untrue, the conclusion of the court that the policy was void was proper, unless the contention made by appellant is to be sustained. That contention involves the legal effect to be given to the finding of the trial court that Clark, the soliciting agent of the defendant, who solicited the insured to apply for the policy, knew, when the insured made his application to the company in which he stated that he had not had paralysis, that that applicant had in fact suffered a stroke of paralysis. The position of appellant relative to this finding is that this knowledge of the soliciting agent, Clark, was knowl |