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plicable to every case, cannot well be given. It is true, as argued by the defendant, that a man may drink occasionally to excess, and yet not be an habitual drunkard; but to constitute him one, it is not necessary that he should be constantly under the influence of intoxicating liquors. A man may be an habitual drunkard even though there be intervals when he entirely refrains from the use of intoxicating drinks. But before he can be regarded as such, it must appear that he drinks to excess so frequently as to become a fixed practice or habit with him. From the facts found by the court it appears that the defendant could not resist the temptation of drinking to excess whenever he had an opportunity to obtain liquor. And where a person indulges in the practice of becoming intoxicated whenever the temptation is presented, and the opportunity is afforded him, it may safely be said that he is an habitual drunkard, within the meaning of the statute relating to divorce. Ludwick v. Com., 18 Pa. St. 172; State v. Pratt, 34 Wt. 323; Magahay v. Magahay, 35 Mich. 210; Blaney v. Blaney, 126 Mass. 205.

Some other objections to the judgment are suggested by the defendant; but, accepting the findings of the trial court, as we do, we are unable to find any error in the record that will justify a reversal. The judgment will be affirmed.

(All the justices concurring.)

(34 Kan. 170)
SULLIVAN v. PHOENIX INS. Co. of BROOKLYN.
Filed October 9, 1885.

1. FIRE INSURANCE—DECEIT AND MISREPRESENTION BY AGENT.

Where an agent of an insurance company, acting within the general scope of the business intrusted to him, whose duty it is to fill up blank applications, deceives and misleads the assured, who is unable to read, by deliberately writing false answers in the application, and procuring the signature of the assured thereto, after he had given full and correct answers to the questions asked, the company receiving the premium, and for whom the agent was acting, will, in the case of a loss, be held responsible for the misrepresentations, and will be estopped from insisting on the breach of warranty and the untruth of the representations.

SAME–WHO TO BEAR LOSs. If any party is to suffer by reason of the wrong-doing of such general agent, it should be the company who clothed him with authority, and for which he was acting, rather than the assured, who acted in good faith, and innocently became a party to the contract. ... SAME—PROVISION IN POLICY. An insurance company cannot escape the responsibility of the mistake or fraud committed by an agent who is its trusted representative, with authority to solicit insurance, fill up and forward applications therefor, and to complete and execute insurance contracts in their behalf, by an ambiguous provision, obscurely printed in the policy, that “it is a part of this contract that any person other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in the policy, and not of this company, under any circumstances whatever, or in any transactions relating to this insurance.” Such a condition involves a legal contradiction, and is invalid

4. PRACTICE—DIRECTING WERDICT. Where a party fails to show something essential to the maintenance of the action or defense, and where there are no disputed facts for the jury to pass upon; the court may direct a verdict; but if the evidence fairly tends to establish the plaintiff's cause of action, the court cannot withdraw the case from the jury and direct a verdict in favor of the defendant, but must leave the weight and credit of the testimony with the jury. . SAME—EFFECT of MoTION. A motion to direct a verdict in favor of the defendant is substantially equivalent to a demurrer to the plaintiff’s evidence.

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Error from Atchison county. T. J. White and W. W. Guthrie, for plaintiff in error. Jackson & Royse, for defendant in error. JoHNSTON, J. On December 23, 1881, the Phoenix Insurance Company of Brooklyn issued a policy of insurance by which the plaintiff was insured against loss by fire for a term of three years on a dwellinghouse, together with the furniture therein. The policy contained a stipulation that the written application of the assured should be considered a part of the policy, and a warranty upon his part that the property insured was in the condition he represented it to be, and that if there was any false representation made by the assured with regard to the condition of the property, or any omission to make known any and every fact material to the risk, it would operate to avoid the policy. Before the term of the policy had lapsed, and on March 22, 1883, the property insured was mostly destroyed by fire. The company refused, upon application, to pay the loss, and the plaintiff accordingly brought this action. The grounds for refusal, as alleged in the answer of the insurance company, were that in the application for insurance, signed by the plaintiff, it was represented that the house was provided with brick chimneys, starting from its foundation; that there were two stoves in the house, and the pipes therefrom entered brick flues; and that no stove-pipes passed through the roof or side of the house. These representations were untrue, as it appears that one stove-pipe, instead of entering a brick flue, as stated in the application, passed directly through the roof of the house, where it is alleged that the fire which destroyed the house originated. In reply to these allegations the plaintiff admitted the signing of the application, but stated that the application was written out by Robert Forbriger, the agent of the company, to whom the plaintiff had given a correct and truthful account of the condition of the building, including the fact that there was one brick and stone chimney in the house, and one stove-pipe, properly protected, which passed directly through the roof; and further, that he requested the agent of the company to view the premises before insuring them, which the agent declined to do; that the agent of the company then pronounced the statements made by the plaintiff to be entirely satisfactory, and informed him that the policy would be issued at once. After these statements were made the agent wrote up what he said was an appliv.8P, no.2–– 8

cation, in a manner unknown to the plaintiff, as he was unable to read it for himself; but believing that it contained, as the agent represented, the substance of the statements which he had made, he signed the same, and the policy was immediately delivered to him by the agent. He alleges that any and all conditions in the policy conflicting with such statements made to and accepted by said agent were withheld from and not communicated to him; and further, that the fire originated at an entirely different part of the premises from where the stove-pipe passed through the roof. The case was tried with a jury, and after the testimony on behalf of both parties had been submitted, the court directed the jury to find against the plaintiff. The plaintiff brings the case here for review, and raises two questions, which he states as follows: “First, had the plaintiff the right to plead the fraud and misrepresentations in obtaining his signature to the application set up as a warranty? Second, if the plaintiff had the right to plead the fraud and misrepresentations, had the court the right to take from the consideration of the jury the duty of weighing the evidence upon controverted facts in relation to the statements and misrepresentations?” The first question, we think, must be answered affirmatively. It is true, the representations written in the application, and purporting to have been made by the plaintiff, in regard to the flues, were untrue. They are doubtless to be regarded as material to the risk, and would, as provided in the contract of insurance, avoid the policy, unless the action of the company and its agent relieves the plaintiff from such a consequence. It is not denied that the answers in the application admitted to be untrue were wholly written out by the agent of the insurance company, nor that the plaintiff is an illiterate man, who was unable to and did not read the application to which his name was attached. The agent, Forbriger, who filled up the application, was invested with authority, as the general agent of the insurance company at Atchison, to solicit and transact its business at that place. He had been provided with blank applications by the company, upon which were printed instructions directing the agent to fill them up in a certain manner. Now, the claim and theory of the plaintiff is that no misrepresentations were made by him, and that the false answers were purposely written out by the agent of the company, without any authority from or knowledge by the plaintiff, and this after he had truthfully answered every question propounded to him. If this theory is sustained by the testimony, the insurance company would be estopped from insisting on the defense of a breach of the warranty, and the plaintiff would be entitled to recover. Assuming the existènce of the facts alleged by the plaintiff, it cannot be said that there has been a breach of the warranty, as claimed by the insurance company, because no such warranty was actually made by the plaintiff; that which purported to be a warranty was the unauthorized and wrongful act of the defendant's agent, and had never been sanctioned or agreed to by the plaintiff. The action of the agent in such a case would be a wrong upon both parties; but if any party is to suffer by reason of the wrong-doing of the agent, it should be the company who clothed him with authority, and for whom he was acting, rather than the assured, who acted in good faith, and innocently became a party to the contract. The view taken is sustained by the authorities, the current of which is to the effect that where an agent of an insurance company, acting within the general scope of the business intrusted to him, whose duty it is to fill up blank applications, deceives and misleads the assured by deliberately writing false answers in the application, and procuring it to be signed by the assured, when the assured had given full and correct amswers to the questions asked, the company receiving the premium, and for which the agent was acting, will, in case of a loss, be held responsible for the misrepresentations, and will be estopped from insisting on the breach of the warranty, and the untruth of the representations. Union Ins. Co. v. McGookey, 33 Ohio St. 555; Planters' Ins. Co. v. Myers, 55 Miss. 479; Bartholomew v. Merchants' Ins. Co., 25 Iowa 507; Sprague v. Holland Purchase Ins. Co., 69 N. Y. 128; American Ins. Co. v. Luttrell, 89 Ill. 314; Pechner v. Phoenix Ins. Co., 65 N. Y. 195; Insurance Co. v. Wilkinson, 13 Wall. 222; Germania F. Ins. Co. v. McKee, 94 Ill. 494; Andes Ins. Co. v. Fish, 71 Ill. 620, Atlantic Ins. Co. v. Wright, 22 Ill. 473; Malleable Iron Works v. Phoenix Ins. Co., 25 Conn. 465; Eilenberger v. Protective Mutual F. Ins. Co., 89 Pa. St. 464; Protection Ins. Co. v. Harmer, 2 Ohio St. 452; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253; Geib v. Instrance Co., 1 Dill. 443; Insurance Co. v. Mahone, 21 Wall. 152; Ayres v. Hartford F. Ins. Co., 17 Iowa, 176; American Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Hine & N. Dig. Ins. Dec. 39, 40, and authorities there cited. To avoid the estoppel, it is claimed by the insurance company that Forbriger was the agent of the insured in the procurement of the policy. The ground of this claim is an ambiguous provision, obscurely printed in the policy, which reads as follows: “It is a part of this contract that any person other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in the policy, and not of this company, under any circumstances whatever, or in any transactions relating to this in Surance.” Reading the whole contract together, it would seem that this condition must have reference to persons other than the regularly constituted agent of the company. Otherwise the provision is a contradiction of other portions of the contract, wherein it appears that Forbriger was the duly-authorized agent of the insurance company at Atchison. He was their trusted representative at that place, not only for the purpose of soliciting insurance and forwarding applications therefor, but he was furnished the necessary blanks and printed documents for the transaction of its business, and also the policies of the company already signed by its president and secretary, with authority to complete them as contracts between the company and its patrons. In the policy it was specifically stated that it should “not be binding until it was countersigned by Robert Forbriger, agent for the company at Atchison, Kansas.” He cannot occupy the antagonistic positions of being agent for both the parties. And under the admitted facts we must hold him to be the agent of the defendant. By this singular condition the company would shirk all responsibility for any mistake or fraud committed by their agent during the preliminary negotiations in their behalf by stipulating that he is the agent of the assured. Such a condition involves a legal contradiction, and is invalid. In Planters' Ins. Co. v. Myers, 55 Miss. 479, the policy sued on contained a like provision, and the court there held that—

“Such stipulation cannot convert the agent who procured the application, and made the contract of insurance on behalf of the company, into an agent of the assured; such company being authorized by its charter to appoint agents and define their duties, and the agent in question being charged with the duty of Soliciting and taking applications for policies, collecting premiums, etc. It is not destructive of the power of the agent, but an attempt of the company to dissolve the relationship between the company and the agent, and to establish it between the latter and the assured. Even if such agent could, by stipulation, be converted into an agent for the assured, he would still be the agent of the company; for in that capacity he professed to deal with the assured, and he was competent to bind his principal within the legitimate range of his employment.”

In Eilenberger v. Protective Mut. F. Ins. Co., 89 Pa. St. 464, the supreme court of Pennsylvania, referring to a similar condition in a contested policy, held that as to all preliminary negotiations the agent acts only on behalf of the company, and that the company cannot escape the consequences of fraud or mistakes of its agent by inserting a stipulation in the policy that such agent shall be deemed the agent of the assured, who, at the time of applying for the policy, was ignorant of the insurer's intention to so stipulate. In Gans v. St. Paul

F. & M. Ins. Co., 43 Wis. 108, it was held that where an agent is .

authorized by the insurance company to receive applications and issue its policies, the company could not, by a stipulation in the policy, substitute the assured for itself as the principal of the agent; and the court, in commenting on the question, remarked that “if the stipulation substitutes the assured for the company as the principal of the agent, then it is competent for a person to make a contract with his own agent which shall bind a third party who is a stranger to it, and who never agreed to be bound by it. This would be a manifest absurdity.” See, also, Sprague v. Holland Purchase Ins. Co., 69 N. Y. 128; Columbia. Ins. Co. v. Cooper, 14 Wright, 331; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253. Upon the other question raised by the plaintiff we are of the opin

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