Opinion
Department Two
Hearing in Bank denied.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. A. Belcher, Judge.
COUNSEL:
William J. Herrin, for Appellant.
Page, McCutchen & Eells, for Respondent.
JUDGES: Britt, C. Gray, C., and Haynes, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
BRITT, Judge
In this cause the defendant demurred to plaintiff's amended complaint for alleged want of facts to constitute a cause of action; the demurrer was sustained and judgment passed in defendant's favor. It is in substance alleged in said complaint, among other things, that one Mouser, an agent of the defendant insurance company, represented to plaintiff that in consideration of the payment by the latter of a specified annual premium, the company would issue to him a policy of life insurance in such form as to entitle him (among other benefits) to receive from defendant the sum of five thousand dollars in case he survived a period of ten years; that plaintiff believed such representations to be true, and in reliance thereon, and at the instance of said agent, made a written application to defendant for a policy; that the agent prepared such application and read it to plaintiff and assured him that it was properly drawn and "all right"; that plaintiff, induced by said statements and conduct of said agent, signed such application without reading it; that the agent then knew his said representations to be false and fraudulent; that plaintiff paid the first annual premium, and in due time received a policy from defendant which, upon examination, he discovered would entitle him upon the expiration of the ten-year period to receive the sum of two thousand five hundred and twenty dollars only; that thereupon he returned the policy to defendant "and repudiated and rescinded the contract of insurance therein set forth." He prays judgment for the amount of the first premium paid as aforesaid.
Among the stipulations contained in said application for a policy (a copy of which is annexed to the complaint as an exhibit) was the following: "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 on any application, and as they act on the written answers referred to, no statements, promises, or information made or given by or to the person soliciting or taking this application for a policy. .. . shall be binding on the company or in any manner affect its rights, unless such statements, promises, or information be reduced to writing and be presented to the officers of the company, at the home office, in this application." Plaintiff does not claim that the policy issued to him was not such a policy as was required by the terms of said written application.
Defendant contends: 1. That the averments of the complaint are insufficient to make a case of fraud on the part of Mouser, the agent. We are disposed to concede that [56 P. 1113] as against a demurrer for uncertainty the complaint could not stand; but the demurrer is general, merely that the complaint does not state facts sufficient to constitute a cause of action, and this objection, it has often been held, cannot prevail when the essential facts substantially appear, although some of them are stated defectively. (See Santa Barbara v. Eldred , 108 Cal. 294.) The particular of the complaint concerning which we have had most doubt is whether it shows that plaintiff did not, without his own fault, understand the terms and effect of the application signed by him. The paper, however, was itself such that its full import would not be understood readily by one not expert in matters of insurance; it is shown by the application that plaintiff's business is unconnected with such matters, and it seems probable that if he had employed his entire available time in perusing the document from the date of his signature thereto until the present, he could scarcely have ascertained from its terms alone whether it varied materially from the oral representations of Mouser. Considering the character of the document in connection with the averments of the complaint regarding Mouser's assurances that the application was properly drawn, and was "all right," etc. -- from which plaintiff would naturally suppose that it was so drawn as to procure the policy Mouser had promised -- we conclude that the complaint does show sufficiently that plaintiff signed the paper, misconceiving its meaning, and without material fault on his own part; in this aspect, therefore, the case is within the rule of Maxson v. Llewelyn , 122 Cal. 195. Similarly, the averment that Mouser knew his promises to be false and fraudulent carries necessarily the implication that they were in fact false and fraudulent, and also that he had no intention that they should be performed; these inferences, questioned by the general demurrer only, must be imputed to the complaint for verity in like manner as if they had been directly charged. (See, besides cases cited above, Hays v. Gloster , 88 Cal. 560, 565; Langley v. Rodriguez , 122 Cal. 580; 68 Am. St. Rep. 70.)
2. It is contended that the fraud of Mouser, if sufficiently alleged, does yet not attach to the defendant; this is asserted on the strength of the provision of the application that statements and promises of the solicitor shall not affect the rights of the company unless reduced to writing and presented in the application. We do not understand that this provision operates to confer upon the company the right to retain money received in consequence of fraud practiced by its agent -- after it has knowledge of the fraud. How could it retain money under such circumstances without becoming party to the fraud? Upon the case stated there was never a free consent to the apparent contract; the agent practiced fraud on both insurer and insured, and justice requires that the contract be held voidable at the instance of either party -- if injured thereby. And such we conceive to be the law deducible from the decisions of this court as well as others. (Maxson v. Llewelyn, supra ; Jurgens v. Insurance Co ., 114 Cal. 161; New York Life Ins. Co. v. Fletcher , 117 U.S. 519; Sawyer v. Equitable etc. Ins. Co ., 42 F. 33-35; Selby v. Mutual Life Ins. Co ., 67 F. 490; Loehner v. Home Mutual Ins. Co ., 17 Mo. 256; Fisher v. Metropolitan Life Ins. Co ., 160 Mass. 386; 39 Am. St. Rep. 495; 162 Mass. 236.) The judgment should be reversed, with directions to the court below to overrule the demurrer.
For the reasons given in the foregoing opinion the judgment is reversed, with directions to the court below to overrule the demurrer.