Opinion
7 Div. 227.
March 17, 1936.
Appeal from Circuit Court, Shelby County; Lamar Field, Judge.
Action on a policy of life insurance by Era S. Crumpton against the New York Life Insurance Company. From a judgment for defendant, plaintiff appeals.
Affirmed.
L. H. Ellis, of Columbiana, for appellant.
When the agent of a life insurance company procures the reinstatement of a lapsed policy with knowledge of the facts necessary to be revealed by the insured, and when, being informed of the facts as they exist, he nevertheless fraudulently writes wrong answers so as to insure a reinstatement, and this is done without participation or collusion on the part of the insured or the beneficiary, such fraud is not available as a defense, and the company is estopped from asserting it. National L. A. I. Co. v. Baker, 226 Ala. 501, 147 So. 427; First Nat. L. I. Co. v. Rector, 225 Ala. 116, 142 So. 392; Life C. I. Co. v. Waldrop, 26 Ala. App. 50, 153 So. 656.
Frank Head, of Columbiana, and Stokely, Scrivner, Dominick Smith, of Birmingham, for appellee.
Knowledge of insurer's agent, authorized only to solicit insurance, deliver policies, and collect premiums, that application for reinstatement required to be made by insured was made by insured's father, and that insured was not in good health as represented in application, is not binding on insurer, where policy provides no agent could modify contract or waive any of insurer's rights or requirements. N.Y. L. I. Co. v. Crumpton, 230 Ala. 147, 160 So. 332; First Nat. L. I. Co. v. Rector, 225 Ala. 116, 142 So. 392; Bankers' Cr. L. I. Co. v. Ayres, 223 Ala. 407, 137 So. 23; Life Ins. Co. of Va. v. Newell, 223 Ala. 401, 137 So. 16; N.C. Mut. L. I. Co. v. Kerley, 215 Ala. 100, 109 So. 755; So. St. L. I. Co. v. Dunckley, 226 Ala. 588, 148 So. 320.
This is the second appeal in this case. See New York Life Insurance Co. v. Crumpton, 230 Ala. 147, 160 So. 332. A statement of the facts sufficient to a disposition of this appeal is to be found in the report of this case above noted.
It is still the undisputed evidence that the original policy had lapsed for nonpayment of premium and that the application for reinstatement was not signed by insured himself.
It is insisted, however, that the local agent of the company had knowledge of all the facts incident to the application for reinstatement and of the ill health of the insured, and with this knowledge the local agent took the application, and that after this the company received and retained the premium paid. There is no evidence authorizing a jury to find that the local agent was other than an agent authorized to solicit insurance, deliver policies, and collect premiums and, as such, knowledge on his part of the fraud being practiced on the company was not notice so as to bind the company by estoppel or waiver. New York Life Insurance Co. v. Crumpton, 230 Ala. 147, 160 So. 332.
As we view this case, every question involved in this appeal is settled adversely to appellant in the above-cited opinion of our Supreme Court; but in addition to what was there so well said, we may add that even if there was some evidence tending to prove authority in the local agent who took the application for reinstatement, the evidence is without dispute that he and the father of insured deliberately perpetrated a fraud on the defendant company in order to procure an acceptance of the reinstatement contract. Such being the case, notice to the agent would not be notice to the principal. The facts here involved constitute an exception to the general rule that notice to the agent is notice to the principal. Commonwealth Life Insurance Co. v. Wilkinson, 23 Ala. App. 561, 129 So. 300; American Central Life Insurance Co. v. First National Bank of Enterprise, 206 Ala. 535, 90 So. 294.
The judgment is affirmed.
Affirmed.