pellant on that day. The fundamental ground of an estoppel is wanting, and we need not weigh other considerations that might operate against it.

The judgment of conviction having been vacated by an order of the court made within the scope of its power and jurisdiction, there remains no legal foundation for the commitment issued on March 20, 1915, and appellant is entitled to be discharged from custody.

Final order reversed, and the cause remanded for further proceedings in conformity with this opinion.

MR. JUSTICE MCREYNOLDS took no part in the consideration or decision of this case.

MUTUAL LIFE INSURANCE COMPANY OF NEW
YORK v. HILTON-GREEN,
WIGGINS.

EXECUTORS OF

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

No. 126. Argued December 9, 1915.-Decided June 12, 1916.

Material representations in an application for life insurance which are incorrect, if known to be untrue by the assured when made, and nothing else appearing, invalidate the policy issued by the insurer relying on such representations, without further proof of actual conscious design to defraud.

The general rule, which imputes an agent's knowledge to the principal, does not apply when the third party knows there is no foundation for the ordinary presumption, and he is acquainted with circumstances plainly indicating that the agent will not advise the principal. The rule imputing agents' knowledge to the principal is intended to protect those exercising good faith and not as a shield for unfair dealing.

While § 2765, Florida Statutes, undertakes to designate as agents of
insurance companies certain persons, in fact, acting for such com-
panies in some particulars, it does not fix the scope of their authority
as between the company and third persons, and does not raise special
agents with limited authority into general ones with unlimited power.
One consciously permitting an application containing material mis-
representations to be presented by subordinate agents to officers of a
life insurance company, under circumstances which he knows
negatives any probability of the actual facts being revealed, and later
accepting policies which he knew were issued in reliance upon state-
ments both false and material, can claim nothing under such policies.
An applicant for insurance should exercise toward the company the
ame good faith which he may rightfully demand from it; the rela-
tionship demands fair dealing by both parties.
211 Fed. Rep. 31, reversed.

THE facts, which involve the construction and effect of an application for life insurance policy containing false statements, and the liability of the company issuing policies in reliance thereon, are stated in the opinion.

Mr. Frederick L. Allen, with whom Mr. Emmett Wilson, Mr. Philip D. Beall and Mr. Murray Downs, for petitioner.

Mr. W. A. Blount, with whom Mr. A. C. Blount and Mr. B. F. Carter were on the brief, for respondents.

MR. JUSTICE MCREYNOLDS delivered the opinion of the

court.

Respondents sued to recover upon four policies, not different except as to numbers, for $7,662.00 each and dated December 16, 1908, on the life of their testator Wiggins, who died March 26, 1910. By various pleas the insurance company set up that the application upon which policies were based contained material representations both false and fraudulent. In reply the executors denied truth of each plea and also alleged that if the appli

다

1

cation contained any misrepresentations the actual circumstances were known to company when policies issued.

Two separate application blanks, each plainly printed upon a large single sheet, were filled out and presented. They are substantially identical except medical examiner's report upon one, dated December 15, 1908, is signed by Geo. C. Kilpatrick, M. D., in two places, while the other, dated December 16, 1908, is twice signed by J. S. Turberville, M. D. (Under the company's rules where insurance applied for amounted to $30,000 two medical examinations were required.)

At the top of each sheet the following appears: "THIS APPLICATION made to the Mutual Life Insurance Company of New York is the basis and a part of a proposed contract of insurance, subject to the charter of the company and the laws of the State of New York. I hereby agree that all the following statements and answers, and all those that I make to the company's medical examiner, in continuation of this application, are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept, and which shall not take effect unless and until the first premium shall have been paid, during my continuance in good health, and unless also the policy shall have been signed by the president and secretary and countersigned by the registrar of the company and issued during my continuance in good health; unless a binding receipt has been issued as hereinafter provided."

Immediately thereafter are statements concerning assured's address, occupation, birth, character of policy desired, etc., and finally this, alleged and shown to be untrue: "22. I have never made an application for life insurance to any company or association upon which a policy has not been issued on the plan and premium rate originally applied for, except as to the following companies or associations: None, and no such application

is now pending or awaiting decision." And this part

of the paper concludes:

"Dated at Pine Barren, Fla. Dec. 15, 1908.

Signature of person whose

life is proposed for in- CILBEY L. WIGGINS

surance,

I have known the above named applicant for six years and saw him sign this application. I have issued binding receipt No.-.

[by rubber stamp]

J. D. TORREY

J. D. TORREY, MANAGER,

MOBILE, ALA."

Soliciting Agent,

On lower portion of the same page, under caption "Medical Examiner's Report," are sundry statements, ostensibly by applicant, concerning his health, history, etc.among them the following, alleged and shown to be untrue:

"3. (a) What illnesses, diseases, or accidents have you had since childhood? Pneumonia. Number of attacks: One. Date of each: 1899. Duration: 30 days. Severity: Not severe. Results: Complete recovery."

"4. State every physician whom you have consulted in the past five years. None."

"8. Have you undergone any surgical operation? No." "13. (a) Have you ever been under treatment at any asylum, cure, hospital or sanitarium. No."

"16. Have you ever been examined for a policy in any company or association which was not issued as applied for? No."

This division ends thus:

"Dated at Pine Barren, I certify that my answers to State of Florida the 15 day the foregoing questions are of December 1908 correctly recorded by the Medical Examiner.

Witness:

GEO. C. KILPATRICK, M. D. CILBEY L. WIGGINS Signature of person examined."

At the top of reverse page, under "Medical Examiner's Report (Continued)", there are many answers purporting to be replies to inquiries propounded by medical examiner concerning applicant's figure, apparent age, measurements, pulse, results of physical examination and personal investigations, etc. And then the following:

"I certify that I have made this examination at Pine Barren, Fla., on this 15 day of

December, 1908, and that GEO. C. KILPATRICK, M. D. the foregoing questions have Medical Examiner." been put, and the answers of the applicant recorded as stated.

The four policies, after being signed in New York by the president, secretary, and registrar of the company, were delivered to assured in Florida. Among others, they contain these clauses:

"This policy and the application herefor, copy of which is indorsed hereon or attached hereto, constitutes the entire contract between the parties hereto. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement of the insured shall avoid or be used in defense to a claim under this policy unless contained in the written application herefor, a copy of which is indorsed hereon or attached hereto." "Agents are not authorized to modify this policy or to extend the time for paying a premium."

During summer of 1907 assured suffered serious pains in his head and, after consulting more than one physician, went to a sanitarium at Montgomery, Alabama, and was there operated on for a cystic enlargement of the lower jaw caused by an impacted wisdom tooth. He was confined to the sanitarium for ten days and remained under