(117 Md. 254) ran over the boy. He testified for the de- ' fendant in the former case; but on the re- FORWOOD v. PRUDENTIAL INS. CO. OF trial he was called by the plaintiff. We have been unable to discover anything: in the testimony of this witness that would make the ruling in the former case inapplicable. His testimony in which he refers to switches and targets is somewhat obscure and confusing; but assuming that he meant to testify, and that he did in fact testify that he did not see and could not see the switch in which the boy was caught, because his vision was cut off by the tender, that fact is not of itself sufficient to take the case out of the ruling of the prior case. The argument in the former case was this: No duty was owed by the defendant to the deceased until its employes in charge of the locomotive and tender saw him in a position of peril, and since neither the engineer nor the other employés on the locomotive and tender saw the boy in a position of peril, therefore there could be no recovery. The answer to this argument was, first, the duty to use care arose from the moment the employés of the defendant became aware that the boy was in a position of peril on the track and was not limited to their actually seeing him in that position; secondly, they might have become aware of his perilous position by hearing his cries of distress. The contention now made is that there can be no recovery, because it was physically impossible for the engineer, by reason of the facts stated in his testimony, to have seen the switch. This is fully answered by what was said in the former case. Besides, nowhere in the testimony of the engineer does he say that he did not see the boy on the switch, or that he did not hear his screams of distress. We are therefore of opinion that the court committed an error in granting the defendant's first prayer by which the jury were instructed to find for the defendant, and for this error the judgment must be reversed. [8] The appellee has moved to dismiss the appeal upon the ground that the transcript of the record in the case was not transmitted to this court within three months from the time the appeal was taken as required by article 5, section 40, of the Code. The affidavits show that the failure to transmit the record in time was not wholly due to the fault, or want of diligence of the appellant, but was partly due to the absence of appellee's counsel from the city. Upon his return to the city from his summer vacation, the bills of exception were completed with reasonable dispatch and were presented to the judge for his signature by both the counsel for the plaintiff and the defendant. We do not find that the counsel for the appellant, under the circumstances, was guilty of such want of diligence as would authorize us to dismiss the appeal. Judgment reversed and new trial awarded, with costs to the appellant. AMERICA. (Court of Appeals of Maryland. Jan. 11, 1912.) 1. INSURANCE (§ 297*)—REPRESENTATIONS— MATERIALITY. Representations by an applicant for insurance that he did not use any malt liquors, wines, or spirits, and had never used malt or spirituous liquors to excess, are material to the risk as a matter of law. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 676; Dec. Dig. § 297.*] 2. INSURANCE (§ 646*)-REPRESENTATIONSBURDEN OF PROOF. 1 The burden is on an insurer to show the falsity of statements and answers in the application, and that they were material to the risk. Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § [Ed. Note.-For other cases, see Insurance, 646.*] 3. INSURANCE (§ 646*)-REPRESENTATIONSBURDEN OF PROOF. Where an insurer has proved the falsity of representations in the application which was signed by the insured, and contained a declaration that all statements and answers were true, and an agreement that they should constitute a part of the contract, the burden is on those claiming under the policy to show that the answers contained in the application were not the answers given by the insured. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § 646.*] 4. INSURANCE (§ 376*) — CONTRACT - POWER OF AGENTS TO CHANGE OR MODIFY. iting any agent from changing or modifying its A provision of an insurance policy prohib terms does not apply to conditions which relate to the inception of the contract. [Ed. Note. For other cases, see Insurance, tion must have been known to the applicant Evidence in an action on an insurance policy held insufficient to show that the false to whether insured had ever used malt or spiranswer in the application to the question as ituous liquors was not the answer given by him to the medical examiner, and that he answered the question truly. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.*] Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge. Action by Annie M. Forwood against the Prudential Insurance Company of America. From a judgment for defendant, plaintiff statements: "3A. State the quantity you use appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ. William L. Marbury and William L. Rawls, for appellant. German H. H. Emory and Morris A. Soper, for appellee. each day of malt liquors. None. Wines. None. Spirits. None. C. Have you ever used malt or spirituous liquors to excess? (If yes, give full particulars.) No." The evidence shows beyond all controversy, and it may be said to be without contradiction, that the statements made under 3A and the answer to C, as written on the application, were false. Fifteen or 16 witnesses testified to the habits of the insured; and, while some of them seemed to have had some difficulty in determining when a man could be said to be "drunk," all of them had seen him more or less under the influence of liquor, and some of them had frequently seen him in that condition. At times he became very noisy and unruly, and on one occasion, when he was arrested for indecent exposure of his person, he offered as an excuse before the recorder of Atlantic City that he was under the influence of liquor when it occurred. He was living at Atlantic City when he applied for this insurance and for several years before, but left about the time the policy was issued, and most of the witnesses who testified to his habits knew him there. Indeed. the appellant said that he drank a glass of beer or whisky whenever he felt like it. As the insured admittedly signed the application, it would be useless to discuss this branch of the case, were it not for the fact that the appellant contends that the insured did not answer the questions as the answers are stated in the application, but that they were written there by the medical examiner, and are simply conclusions of the examiner and his construction of what the insured said. In other words, it was, in effect, conceded that those answers, as they were written in the application, were untrue, but it is contended that they were not the answers given by the insured. BOYD, C. J. On the 16th day of Decemher, 1999, the appellee issued an insurance policy on the life of William T. Forwood, the husband of the appellant, which was originally payable to the executors, administrators, or assigns of the insured, but the appellant was subsequently made the beneficiary. The insured died on the 21st of August, 1910, and, the appellee having declined to pay the policy, suit was brought thereon. In addition to the two general issue pleas, the appellee filed three special pleas, in the first of which it is alleged that the insured made application on or about the 2d of December, 1909, for the insurance, "and on or about the 4th day of December, 1909, did falsely and fraudulently represent and warrant to the defendant in continuation of said application, and as part thereof, which application constitutes a part of said policy of insurance, that he did not use malt liquors, wines and spirits." In the next plea (fourth) it is alleged that he falsely and fraudulently represented that he had never used malt and spirituous liquors to excess, and in the last (fifth) that he represented that he was engaged, and had been for a long time prior thereto, as a salesman of pianos and sewing machines, and that he was not then engaged, had never been engaged, and had no intention of engaging, in the manufacture, sale, and handling of malt and spirituous liquors. The three special pleas seem to be in due form, making the necessary allegations that the representa- [1, 2] At least, since the case of Mutual tions and warranties were false, etc., and is- Life Insurance Co. v. Mullan, 107 Md. 457, sue was joined on them. The only excep- 69 Atl. 385, it cannot be doubted that such tions taken were to the refusal to grant the misstatements as are alleged to be in the applaintiff's first, second, and third prayers, plication were concerning matters material and to granting an instruction drawn by the to the risk, and the insured necessarily knew court. That instruction was: "The court them to be false, if made as stated in the instructs the jury that uncontradicted evi- application. Mullan in his application statdence in this case shows that the statements ed that his habit as to the use of intoxicants made at the time of signing the application was one glass of beer a day on an average, for insurance by the insured, whether as con- and that such had been his habit in the past. tained in the application or as testified to The testimony showed that he drank to exby the wife of the insured as then made by cess, was quite frequently drunk, and had him, were untrue, and, that these statements been treated for acute alcoholism. It was being material to the risk, their verdict must said in the opinion delivered by Judge be for the defendant." A verdict was ren- Worthington: "The fact that Mullan drank dered for the defendant in pursuance of that intoxicating liquors very much in excess of instruction, and from the judgment entered 'one glass of beer a day on an average' was thereon this appeal was taken. The defense also material to the risk as a matter of law, made by the first two special pleas (number- and the court below by granting the defended third and fourth) will be considered to- ant's sixth prayer properly so instructed the gether. In the application for insurance, un- jury." Again, it was there stated: "As we der the head of "Declarations Made to the have already said, the fact that the appli one glass of beer a day on an average was palpably material to the risk." The burden was on the defendant (appellee) of proving the falsity of the statements and answers made in the application, and also, if untrue, that they related to some matter material to the risk. Royal Arcanum v. Brashears, 89 Md. 633, 43 Atl. 866; Mullan's Case, supra. But that burden has been clearly and fully met as to the statements and answers in the application, and they were material to the risk, and can be so determined by the court as a matter of law. Bankers' Life Ins. Co. v. Miller, 100 Md. 1, 59 Atl. 116; Mullan's Case, supra. See, also, other cases cited in Mutual Life Ins. Co. v. Robinson, decided by this court April 5, 1911, found in 115 Md. 408, 80 Atl. 1085. [3] Inasmuch, then, as the appellee has, with evidence which is uncontradicted, met the burden originally on it, and inasmuch as the insured admittedly signed the applicacation, which declared "that all the statements and answers to above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for," clearly the burden of showing that they were not the answers and statements of the insured, or that he qualified those statements and answers, but the agent of the company without his knowledge did not insert the qualifications, is shifted, and rests upon the appellant. In Globe Reserve Mut. Life Ins. Co. v. Duffy, 76 Md. 293, 25 Atl. 227, it appeared that the medical examiner wrote down the answers to the various questions upon the printed application, and amongst others it was stated that the insured had no pulmonary and no kidney trouble. The evidence on the part of the insurer tended to prove that he had, and for some years prior to that had had, both of those troubles, from which he died in less than two months after the date of the policy. Judge McSherry said that, if the medical examiner was the agent of the company, it required no argument to show that it was not within the scope of his authority to mislead and deliberately impose upon his principal, and he then went on to say: "Notwithstanding this is so, there are many cases in which, to prevent fraud and gross injustice, an insurance company is estopped, on grounds of the highest public policy, to object that the statements made by its agents beyond the scope of their authority are false. But there must be no complicity on the part of the assured; because, if false answers be written in the application by the agent with the knowledge of the assured, the latter becomes an accomplice, and both perpetrate a fraud upon the company. In such a case it is obvious that a recovery could not be permitted upon a policy thus procured. And so, where false answers have edge of the assured, but the latter has the means at hand to discover the falsehood and negligently omits to use them, he will be regarded as an instrument in the perpetration of the fraud, and no recovery could be had upon the policy." He cited New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, 29 L. Ed. 934, and several other cases, and then continued: "If the assured be neither an accomplice nor an instrument, and be imposed upon without fault on his own part by the agent of the company, his beneficiary will be entitled to recover, notwithstanding the statements are inaccurate or untrue. Keystone Mut. Ben. As sociation v. Jones, 72 Md. 363 [20 Atl. 195]." In Fletcher's Case the Supreme Court said it was the duty of the insured to read the application he signed, and, after discussing that, added: "There is another view of this case equally fatal to a recovery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at once disclosed by the copy of the application, annexed to the policy, to which his attention was called. He would have discovered by inspection that a fraud had been perpetrated not only upon himself, but upon the company, and it would have been his duty to make the fact known to the company. He could not hold the policy without approving the action of the agents, and thus becoming a participant in the fraud committed. The retention of the policy was an approval of the application and of its statements. consequences of that approval cannot, after his death, be avoided." The [4] It is true that the provision prohibiting an agent from changing or modifying the terms of a policy may not apply to conditions which relate to the inception of the contract, as illustrated in Dulany v. Fidelity & Gas Co., 106 Md. 34, 66 Atl. 614, N. J. Mut. Life Ins. Co. v. Baker, 94 U. S. 610, 24 L. Ed. 268, and Insurance Co. v. Mahone, 88 U. S. 152, 22 L. Ed. 593, and it is said in Dulany's Case that: "If the actual facts were explained by the assured to the agent of the company through whom the policy was delivered to him and the premium collected, and that agent undertook to determine whether the facts were material to the risk, and wrote or instructed the appellant to write the answer appearing on the application, the company would be estopped to set up those facts to defeat an action to recover on the policy." It may well be, and undoubtedly is in many cases, that insurance companies are estopped from taking advantage of the acts of their own agents, who, either designedly or by placing a wrong interpretation on the meaning of terms used in a policy, misstate or conceal some of the facts which applicants for insurance have laid before them. It is unfortunately true sometimes write in the applications, or in some way report to their principals, statements which either are not justified by what the applicants say, or do not disclose the whole truth, as related by such applicants. Sometimes people may honestly differ as to whether a certain fact exists, or as to the necessity for a fuller disclosure, as may be illustrated by the question in the Mahone Case, supra, which was: "Is the party temperate and regular in his habits?" Such a question might be answered differently according to the way different persons regarded the subject. [5] But in this case when the applicant was called upon to "state the quantity you use each day of malt liquors, wines, spirits," and answered to each, "None." it is clear he knew that was not true, whether we accept the testimony of the appellee's witnesses or that of the appellant. It is not pretended that such was the case. If, then, we apply the doctrine announced in Fletcher's Case, which was cited with approval in Duffy's Case, there can be no recovery, for the reasons stated by Judge McSherry in Duffy's Case which we have quoted above. As in Fletcher's Case, the copy of the application of Forwood was annexed to the policy, and he not only declared that "all the statements and answers to the above questions are complete and true." as made in the declaration to the medical examiner, but at the end of the statements which he gave to the agent he referred to those made to the company's medical examiner. and agreed that they should "become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained," etc. [6] But, if there be any doubt about the law as applicable to the answers to the above (3A), can there be any as to the other (C): "Have you ever used malt or spirituous liquors to excess"? To that the reply, as stated in the application, was "No." How was that met by the appellant? The only witness who attempted in any way to contradict, modify, or explain the answers made by Mr. Forwood, as shown on the application, was the appellant, unless that can be said of William H. Johnson, who was the agent that obtained the insurance. His testimony in the record is as follows: "Q. Did Mr. Forwood on that occasion state that he took a glass of liquor or beer whenever he felt like doing so? A. He answered the question, 'None.' Then he put in afterwards that he did use a little in time of colds or anything like that. That was the only time he ever indulged. Q. What do you mean by time of cold? (Objected to. Objection sustained.) The Court: Ask him to state whether he explained what he meant as to whether he had a cold or the weather was cold. Wit very striking peculiarity about the testimony of the appellant is that, so far as the record discloses, she was not asked and did not say that the insured's answer to "C" was not "No." All of her testimony in chief on the subject of her husband's drinking was: "That the doctor asked the question and wrote the answer down. That witness heard the question asked Mr. Forwood, which is No. 3A; the question being, 'State the quantity you use each day of malt liquors, wines, and spirits.' That in answer to that question Mr. Forwood told the doctor the amount he took, he took a glass of beer or a glass of whisky occasionally whenever he felt like it, but he did not make a habit of getting drunk. That he said that he took a glass of beer or a glass of whisky whenever he felt like it, but he did not make a habit of getting drunk. That is what Mr. Forwood said. When that answer was given by Mr. Forwood, the doctor said to him, 'You don't make any habit of getting drunk? Mr. Forwood said, 'Yes, sir.' Q. Was that answer true? A. I guess it was. Q. That answer was given to all the questions, malt liquor, wines, and spirits, was it not? A. Yes, sir." She was then asked about question marked "D," as to being in the liquor business, but no specific question appears to have been asked her about "C." Her cross-examination was in effect the same, and she was not then asked about the answer to "C." The two questions (3A and C) are by no means the same, and are intended to get information as to both matters inquired about. It might be true that an applicant did not use literally each day any malt liquors, wines, or spirits, and it might be that he had not used either for months or years, while it might be equally true that he had at one time used them to such excess as materially injured his health. Question C was, "Have you ever used," etc.? But, if we assume that she intended her testimony to apply to both 3A and 3C, it does not show that be did not answer C in the negative as stated in the application. He might have answered 3A as she said he did, and yet have answered C as the application shows. If she meant to say that he answered C by saying "he took a glass of beer or a glass of whisky oc-` casionally when he felt like it, but he did not make a habit of getting drunk," and if that had been in the application, it was not true according to the testimony of many witnesses, and she does not say it was true. The nearest she came to saying so was when, in answer to the question, "Was that answer true?" she replied, "I guess it was." Surely when we remember the burden was then on her to show that the application did not properly state his answer, her statement, "I guess it was," would not be sufficient to overcome the overwhelming testimony of numerous witnesses, or be sufficient to jus jury. Many witnesses showed that he was That witness is able to say that no person the habit of getting drunk. present, Forwood or any one else, made any statement in his hearing to indicate that Forwood was a drinking man.” If a beneficiary is to be permitted to prove that the application did not truly state what the insured said, notwithstanding the fact. So, without further reference to the testhat he declared that such written statements, timony, it is clear that the appellant did not were true, and had in his possession, attached show that Mr. Forwood had made any stateto his policy, a copy of the application for ments at the time the answers were written some months which showed what he had been in the application, which would relieve her reported to the company as saying, it must at of the barrier to recovery that the answer to least be done in a positive and certain way. question C furnishes, in view of the unconand not by the use of ambiguous expressions. tradicted evidence that his answer to it was It must be remembered that we are dealing false. We will, therefore, affirm the judg with a subject within the knowledge of the ment for the reasons we have given, withapplicant, and not necessarily, or even pre-out discussing the other ground relied on by sumably, within the knowledge of the insur- the appellee, or the plaintiff's prayers, the er. As reflecting upon the importance of rejection of which necessarily followed the such questions in the opinion of those in instruction given by the court. charge of this company, we will quote from Judgment affirmed, the appellant to pay the testimony of the medical director of the the costs. appellee. He testified: "That the company will not insure the lives of people who frequently become intoxicated, because it is a well-known fact that the rates for life insurance will not cover the additional mortal- (Court of Errors and Appeals of New Jersey. (82 N. J. L. 610) HERR v. BOARD OF EDUCATION OF NEWARK. April 26, 1912.) (Syllabus by the Court.) 1. EMINENT DOMAIN (§ 152*)-PROCEEDINGS [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 403-406; Dec. Dig. § 152.*] 2. EMINENT DOMAIN (§ 152*)-RIGHT TO COMOWNER OF PROPERTY NOT PENSATION TAKEN. The owner of a tract not taken by condemnation proceedings cannot be allowed for mages caused by the condemnation of land of another owner that is restricted by covenants for the benefit of the tract not taken. Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 403-406; Dec. Dig. § 152.*] ity that it is known that this or any other company would have to provide for if the person insured is intemperate. By additional mortality witness means mortality above the rates of the amount provided for by the rates for insurance. That persons who are intemperate and frequently get drunk do not live as long as other persons. That the same is true with regard to the sale and handling of liquors." He also said, in answer to a question, that his company would not insure a man "if I knew it was habitual with him to become intoxicated once in every two months," and, again: "That witness' company does not insure persons who frequently become intoxicated, if it knows at the time such application is made such person becomes intoxicated. That witness considers the action and habits of a person very material to the risk assumed under the policy by the Prudential Company." Dr. Souder, the medical examiner, testified that he got the information which enabled him to write the answers from Mr. Forwood, that he asked Forwood the questions, and he made those answers. It is true that on cross-examination he said he could not give the details of the conversation that took place, could not give his exact words, as he did not remember that far back, but in answer to the question, "Tell us what he told you?" he said, "That is indicated by the answers, that he did not use those liquors; that he used none." On redirect examina-ers may appeal. tion he said: "That, if witness had seen any- [Ed. Note.-For other cases, see Eminent Dothing there to indicate Forwood was a drink- main, Cent. Dig. §§ 614, 619; Dec. Dig. § 238.*] ing man, he would have reported it, and he would not have recommended him as a firstclass risk. If any one had told him anything different than what he had reported to the company witness would have investigate 1. versed and remanded. . EMINENT DOMAIN (§ 238*)-PROCEEDINGS TO ASSESS COMPENSATION-APPEAL. lating condemnation proceedings, the owner of Under the act of 1900 (C. S. § 2182) reguany property right in the land sought to be condemned may appeal from the award of the commissioners. Domain, Cent. Dig. §§ 614, 619; Dec. Dig. § [Ed. Note.-For other cases. see Eminent 238.*] . EMINENT DOMAIN (§ 238*)—ProceediNGS TO ASSESS COMPENSATION-APPEAL. Where the petition in condemnation proeedings makes parties the owners of land not taken who claim a right therein by reason of restrictive covenants in their favor, those own Error to Circuit Court, Essex County. Action by Charles F. Herr against the Board of Education of Newark. Judgment for plaintiff, and defendant brings error. Re |