McKay v. New York Life Insurance

Citations

• 124 Cal. 270
• 56 P. 1112
• 1899 Cal. LEXIS 984

Syllabus

<p>Life Insurance—Fraud of Agent—Rescission of Policy—Recovery Back of Premium — Sufficiency of Complaint—Exhibit. — A complaint to recover back a premium paid upon a life insurance policy examined, and held to state a cause of action founded on the fraud of the agent of the insurance company perpetrated in obtaining plaintiff’s application for the policy.</p> <p>Id.—Pleading—General Demurrer—Inferential Averments—Absence of Fault of Plaintiff—Fraudulent Intention of Agent.—The fact that the complaint in such action is subject to a demurrer for uncertainty, in not showing directly that plaintiff signed the application, misconceiving its meaning, and without material fault on his own part, and that the promises of the agent of the defendant were false and fraudulent, and that he had no intention that they should be performed, is not material, in the absence of such demurrer, if such statements sufficiently appear to be true by reasonable and necessary inferences from the facts averred. These inferences, questioned by a general demurrer only, must be imputed to the complaint for verity in like manner as if they had been directly charged.</p> <p>Id.—Fraud of Agent Attaching to Principal—Knowledge—Retention of Money.— 1 he provision in the policy that the unwritten statements and promises of the agent do not affect the rights of the company does not confer upon the company the right to retain money received in consequence of fraud practiced hy the agent, after it has knowledge of the fraud.</p> <p>Id.—Fraud upon Both Parties—Absence of Free Consent—Voidable Contract.—The agent having practiced a fraud upon both the insurer and the insured, and there having never been a free consent to the apparent contract, the contract is justly voidable at the instance of either party, if 'injured thereby.</p>