846 railroaci is. nota with thll bfakeman of ,Il train,(c) or with the engin eer. (d) But the workmen employe(iin a machine-shop of a railway fellow-servants, ,so that if a. bpiler, sent to the shop for repair:, company by: of tile of another workexplode;sallQ. Dlap through wholle hands it has passed in course of repair, the companyilil not liaqle,though it would have been otherwise had it .been placed in the hands of an eniploYll fp!i use.(e) . WAYLAND E. BENJAMIN. Searle v. Limlsat,lH);B.{N.B.)429; COnwa7 v. Belfast·. e,lo.iJl, Co. l. R.19 C. L ... lIB., , (4) Darkln v, Sbarp,SS·N. Y, 225.
C') LoDi v.
(.)Murpill v. BootoD, etc., B. I"II.llll N.
.14f.
lID Mo. 226.
FLE'l'OHER "',!i
V.
NEWYOBlt.. LIFE INS. CO.;, '. "':;',
(C!wcuil Cou,'I't, E. D.
September 23,1882.)
Wllere,llopJ'rty aignAA an application whicb, t1J,at the therein 8houl!! , , be the basis 'of the cOIUract;,and their /!oDd which also contamedani'greement that n'O statemlmtli; representations,orinformation made or 'given bjor to the person soliciting or taking his application fOr a policy, or to. ;any other rierson, should or in any manner dffect "its. rights, unless such 'statements, representations, or information werereduced:' to writtng &ndpresented to ·,the .0ftlcel'B of' the .company, at its ,and whe.re Ijucl\ applica.tion contain/ld two .false&oswers material to the' which,hl\d peen :writlen ,\:jlerein Il;nlle, agent who exam. the Mid, n08uit ?Ould be maintained on \hepohcy lncaseof tlieassured'8 death unless It were proved, thlitthe' &ssUred'sRDswers to 'the to which' false answers had heel!. inserted, were true : :that the false answJl'B'had been by the company's. . agent.withoutthe 88sured"s kI10wledge';laml that such agent concealed from :' ,the assured what he had wtitten'iD t!)eapplicatioD, and induced him to sign it, :wJtholJ,tkno.wing what, it contained. 8. 15AME,
Parol' evldenceia.admiSlliblil'insuch C8888 to mow fraud on the agent'8 part. .. 6..uI1Il.,.,.CONCEAWflIl:NT, OFAGUT'S
Where aD applicant for insurance di8OOVtu'lI before the policy is iS8ued, 'Or the1irst premlUl?,pRid, that the'companY'8 agent has optainep ,hiS signature to an 'application C<1Dt"ining' it .JjI' .hi8.'dqty t\>gO no fUJ:ther ,in the ., traJlsal;t,ion; but, ir he does .make uniUaftel' the policy has been issued and ,the ,first premium paid, he is Dot. bound to take any.tepa to> I haNe·thll policy c a . - n c e l e d ; ' , " ' Tf "
FRAUD, ;
.....oned
Ii,·.
j:
;-;;
F, Bet, Esq" ot the tll;.Lolll. bu.
84-7
-Suit upon a 'polieyof instll'atice upon the life of C. S. Alford, de'ce'aaedlbyhis executor,i'ho:lJ1as'C; :]fletcwer, fGl'$lO, 000 and interest'. FED'. REP, :55rr,.ythie A'newtriafha'"9'ing been. grau'ted caSEl was,a Iileooud lJime ! 'bef()'rea. ij\ltty:,:, 'I!Jvidence: ha'Vingbeim' introduced by; the dafel1dtlihtJ cdn·' + tained in Mr. inl3utahCelwsfe; false; , tiff offered parol evidence, 'which wa;s admitted, tending to prove thtlit, the appliC'ant's answer had beentrtie;that t'h:e falseauswers' haitbeeR ' inserted without, his knowledge by the: agent who took the'applictttion; that the applicantsignedth:e application, snpposing'it conta.ined. answers as givert ;"'8indth1i.t his .signature thereto was obtained bytbe: conl.pany's agent by fratid. For report of %he first 'trial Bee n 'FED. REP,877. ForairepOtt of opinioniJ ondemurrer:1io the replication see 18 FED. REP, 52t); '"' George D, fOt'iplll.intiif.,' ' , ; @verallet Jitd80h, fordefelldaint;' ! : j , ! ),Y," :, :'.MCCRARY, C. 'J ()'l1he})Hheipa;l faetsin this case i disputed. :The I6brigiaeiationwillfall Within !& nry: Imtrbw compass: -"Tt:ia 'neoel3siti'yi tliaHlle Court'shottld "" .; u <-, ' : charge you'itt"atiy It is Qdmitbed t t>Yitli\:i; defendant company;: that it iwlts:g,!pdlidY upGti:'the lifeiOf CHirl6tilia s. Alford 'Alford died;'hd\rin:g/paid:' his'premiums tittle of his death;.' tha,tthe' p'lMn:ttff here is' hiB execuliol';' and; en';' to recover/if 'a, been'mada ontuponl' ftihe The' defens'e: iathltt: for 'insurllrnce, Mr,. Alford, Il.ttlia; , time 'of making his 'certain f iJithe application', *hich werlhlutttie'&'ndWhich wetematerial. '; -lIt is said;tha'ti ,he reprk'Beri:ted'to' tliW: agElJ1b i ofthe-compahy that' h e'hever had any' dil:lea:se 'Of'the 'kidneys;' tli8.'t represented'thM j never had an attending physician; that in all respects his ti6nwasuntrue;' aina',: these n'J.'aiti&rg,it({§ e'laillledJ th\tt the ebntr'act based upon In Il.uswe't toithis;!it is:sftl:dthatT,'; aitliough there' 'is a these' ilond fa1.l: it is sigried bY'1lhel'issmed, 'Mt;' A:1fMll, obtained from him'l;y'fraua:Jn<-tlieJ'partof th& agEmlt, oifthe .company. The lawiB'tliltt'ah<H:isutance ii.liy(.oth'er: person, natural: '01' :'itTtificill.i',':m:ay.dappoitit :'Mi' ageb't; "alnd;: m'ltYIlnt IhnitationB 'uptniitlfe the' Jt:\'gen.t, or nd.; tice of 'these lWbrlHigHtlWotDEdd tbe'pdrty with,whbt1l ,agent' cOritrat:tl:f; .: '1YriirCipalLih' ease Jthe: iusutanete)
a
848
FEDERAL BEPoORTE&
companY'-'-is held to whatever is the apparent scope of the agent's authority. This doctrine is invoked here, and is I1Ipplicabli:l to a certain extent, and. only to a oertain extent. There is a limitation in this contract upon the power of agent. The company is not to be bound by any representations made to or by the. a.gent, unless these representations are, put in wrjting ,and submitted to the COllpany.. Therefore, is contained in th.is application, although the were not truly' w:puld be regarded as constitutit can be avoided for fraud. ing the basis of this Consequently tlw question for youtCi>det8rmine is whether there was a fraud jn the' procuripg. of. this; policy. of insuranea;by the .agent ,of the insurance company jand upon that subjeot I will state wMt.I ' understand tope the cOf,Jiect r.ule.· If the jury :fi;l14 frolli. the evidence tha.t at the time of making the application}lr.Alfor.d ti>ld.tbe agent of the defendant that he, ,A.Uord, haA had diabet,68.. and. referred him to his physician ooncer:ni:pg it, .and, SUch agent. mitted. afraud'upon Mr. Alford:QY insertingfalseallswers in tpe applic;a.tion and, suppresiling.:the :ll.DSwerS actually given, and by concealing from him what A,e, .the agent, 'had written, in the app,lica., tion, thereby inducing him to sign said, applioation w.ithout knowing what ,it 90ntained, then the plainnitfis, not estopped to recover. { will -aee., gentlemen, that there are two things to be shown: First,that the assured, Mr. Alford,made true with regard to this matter of his haying a disease, and his having an attending physician; secondly, it: must appear that, the agent of the company, Jar the purpose of inducing him to insure, for the purpose of obtaining from him the premium which he was to pay, falsely inserted in the, appliaation answers which he did not give; . and then it must also be shown Mr. Alford l:\igned the applicathat his answers had not been truly retiqn in ignorance of corded in it. !fall these then there is a,case of fraud established. The fraud is upon the plaintiff. The presumption is burden of that the pa.per which was signed by Alford contained hie true an-. swers, and that presumption must be overcome by proof offered here I think that is the only question that there by the is for your consideration-the qllestion of fraud. There is another point m/l.lleby counsel which deserves notice., If the plaintiff ascertained before the contract wa.sconsummated that this fraud had been practicl;ld upon,hi.rp by the agent, it was his duty then to stop and to go no farther; that is, if at any titp.e before
THOMAS 'V. LENHON.
849
the policy was (lelivered to him, and the first premium was paid, be discovered that the,. agent had' committed a fraud upon him ,and upon the .cQ.mpany, 'because it was fraud both upon the assured and the company, then it was his duty to stop,and to decline to go any further with tbe transaction. But I tbink if be did not discover before tbe policy was delivered and the first premium paid,thathe was not called iIpon after that'to take any steps for the cancellation of the contract. The' defendartt blts Here' in the sum of $888.26. You will, in any event,retutn a 'verdict for tnat will make suehorder with regard 'to hoS'ts .as may be' cOIlsidered'rignt, after you have' returned your' if you nb'more than t n M . · · f ,', '" ': The' 'q\1estioh' lor you todetermirie is whether the wboleamount, of this 'policy lis: dii&,' to' be oblyfor the al'ti<Junt tendered, wnicn 1's $888.2tj;f""If 'y6u nnd for theplaintiff inthl3whole amount,you; Will 'give hUn at th'e! rate of 6 percent., pe¥ riutri from6(j dayii thedi1t'e wheri the' proof was 'tbat' date is tbe'fdurleenth of Dederi:lber; 1880, so that interest 'would beghl1;o ,ruri'fromthefonrteetithofFebruary, 1881.' You will have to beat'fil niina these dates. ' Your verdict, therefore, for the sum of or for the amount of the policy,withinterestfroni February 14, 1SS1. The jury rendered a verdict for plaintiff for the amount Of icy, with interest, and the defendant thereupon took an appeal to the c'ourt. '
THOMAS (fJircuit (Jourt, D.
v.
LENNON.
JanualV 19. 1883.)
thepiall-o doee not dedicate W'hat it does not ,and what cannot be duced frow it, and defendantdoell not, therefore,po&sess and has no right to performspch composition as for an orchestra, although he should ha:ve the opportunity to copy it. 2.
COMPOBITION....RIGHTB OF CoMPOSER.
, v.:14,no.14-54