231 U.S.

Opinion of the Court.

establish that where the agent of the company prepares the application or makes representations to the insured as to the character and effect of the statements of the application he will be regarded in so doing as the agent of the company, and not the agent of the insured. Among the cases cited to sustain the principle are the following in this court: Union Mutual Insurance Co. v. Wilkinson, 13 Wall. 222; American Life Insurance Co. v. Mahone, 21 Wall. 152; New Jersey Mutual Life Insurance Co. v. Baker, 94 U. S. 610; Continental Life Insurance Co. v. Chamberlain, 132 U. S. 304. German-American Life Association v. Farley, supra, is also cited, and, being a Georgia case, its authority is especially urged.

There are, however, later cases which enforce the provisions of a policy, and we have seen that it was agreed in the policy under review "that no statement or declaration made to any agent, examiner or other person, and not contained in" the application, should "be taken or construed as having been made to or brought to the notice or knowledge of” the company, "or as charging it with any liability by reason thereof." And he, Salgue, expressed his understanding to be that the company or one or more of its executive officers, and no other person, could grant insurance or make any agreement binding upon the company.

The competency of applicants for insurance to make such agreements, and that they are binding when made, is decided by Northern Assurance Co. v. Grand View Building Association, 183 U. S. 308; Northern Assurance Co. v. Grand View Building Association, 203 U. S. 106; Penman v. St. Paul Fire & Marine Insurance Co., 216 U. S. 311.

To the contention that German-American Life Association v. Farley, is determinative, we answer that the principle which it is cited to support is one of general jurisprudence, and therefore the case is not controlling. Kuhn v. Fairmont Coal Co., 215 U. S. 349.

This case was consolidated by the court, against the objection of the insurance company, with the trial of the case of the same plaintiff against the Prudential Insurance Company. This action of the court was based on § 921 of the Revised Statutes which provides that "causes of a like nature or relative to the same questions" may be consolidated "when it appears reasonable to do so." The action of the court is assigned as error. We doubt if it was reasonable to consolidate the cases. We need not, however, pass definitely on that point, as we direct a new trial on other grounds.

Judgment reversed and cause remanded to the District Court for a new trial.

MR. JUSTICE PITNEY dissents.

PRUDENTIAL

INSURANCE

COMPANY OF

AMERICA v. MOORE, ADMINISTRATOR OF SALGUE.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 47. Argued November 6, 1913.-Decided December 22, 1913.

Aetna Insurance Co. v. Moore, ante, p. 543; followed to effect that it was error not to charge the jury that a statement made by an applicant for life insurance that he had never been rejected by any company, association or agent after he had withdrawn an application on the advice of the medical adviser with knowledge that the company for whom the examination was made would reject him, is material and untruthful.

Where the policy itself expressly provides that it cannot be varied by anyone except an officer of the company issuing it, the company is

not estopped to contest the policy on the ground of misrepresentations or concealment in the application because its agent has knowledge of actual conditions.

THE facts, which involve the validity of a verdict and judgment on a policy of life insurance, are stated in the opinion.

Mr. Eugene R. Black, with whom Mr. Sanders McDaniel and Mr. Edward D. Duffield were on the brief, for petitioner.

Mr. Minter Wimberly, with whom Mr. Alexander Akerman and Mr. Jesse Harris were on the brief, for respondent.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Action upon a policy of insurance for $5,000 issued by petitioner, herein called the insurance company, upon the life of John Andrew Salgue. It was consolidated and tried with the case against the Aetna Company, and resulted in a verdict for the amount of the policy, upon which judgment was entered. It was affirmed by the Circuit Court of Appeals and the case was then brought here. Though consolidated in the District Court with the other case, it is here upon a separate record and submitted upon a separate argument. It, however, involves some of the same fundamental questions.

Salgue, in his application for insurance, declared and warranted that he was in good health and that all the statements and answers to the questions put to him were complete and true, and that the declaration should constitute a part of the contract of insurance applied for. He further agreed that the policy should not take effect VOL. CCXXXI-36

until the same should be issued and delivered by the company while his health was in the same condition as described in the application.

Certain provisions were made part of the policy, among others, that "no agent has power in behalf of the company to make or modify this or any contract of insurance, to extend the time for paying a premium, to waive any forfeiture or to bind the company by making any promise, or making or receiving any presentation or information."

On the medical examination he declared as follows: "I hereby warrant that the answers to these questions are true and correct, and agree that they shall form a part of the contract of insurance applied for." The questions in the application and the answers thereto were as follows:

"Has any company or association ever declined to grant insurance on your life, or issue a policy of a different kind or for a sum less than that applied for?"

Answer: "No."

"If 'yes,' give name of company or companies and when."

(No answer was given to this question.)

"Is application for insurance on your life pending at this time in any other company; if so, give the name of the company."

Answer: "Yes; Provident Savings Life."

"When were you last attended by a physician?"

Answer: "Early spring of 1905."

"For what complaint?"

Answer: "Bilious fever, two days."

"Have you ever had any serious illness?"

Answer: "No."

"Are you in good health?"

Answer: "Yes."

There was testimony in the case tending to show that these answers were untrue; that he had chronic acid

gastritis and heart disease and that other applications for insurance were pending, and others not granted. And it is urged that, the answers to the questions above stated being in the negative, he omitted to answer other questions which were material to be answered in order to make his statement complete and truthful; that, therefore, his omission to answer amounted to a fraudulent concealment.

Error is assigned on the ruling of the court refusing to direct a verdict for the insurance company and refusing certain special instructions.

The policy is conceded to be a Georgia contract and it is contended that the warranties contained in the application were all material to the risk and that they were all broken (1) because the evidence showed that the answers to the questions were false, thereby avoiding the policy; (2) the policy was not delivered to Salgue while he was in good health, that being a condition precedent to its taking effect, and (3) the policy was void by reason of incomplete and untruthful answers. This, it is urged, is the effect of the Georgia law, which, while it modifies the imperative character of statements by an applicant for insurance as warranties, yet provides that any variation from the facts stated "by which the nature, or extent, or character of the risk is changed will void the policy." Section 2479, Code of Georgia.

The insurance company, therefore, to sustain its contention that a verdict should have been directed for it, must establish that the representations were material to the risk and that they were untrue. Whether they were untrue is a question of fact and as the proposition of law which the insurance company relies upon is exhibited by the special request we shall pass to the consideration of the latter. It presents the question of the materiality of Salgue's statements to the risk as one of law. The court submitted it to the jury as a question of fact and