Page:North Dakota Reports (vol. 1).pdf/203

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JOHNSON v. DAKOTA FIRE & MARINE INS. CO.
179

fact that he (Strong) was fully and truthfully informed by the plaintiff as to the incumbrances. The fact of deception practiced by the agent is not questioned; but who shall shoulder the consequences of such deceptions? is a question much mooted in the adjudicated cases, and one which has given this court no little difficulty. For whom was Strong acting, and who was he representing, when soliciting and taking plaintiff's application for the insurance? The earlier cases held quite uniformly that, where the insured signed a written application as a basis for the contract of insurance, he adopted all of its contents, and was bound by it, and that if, by his request or permission, the solicitor of the insurance acted for him in filling out the application, such solicitor was so far forth the agent of the insured, and not the agent of the company. Some courts still adhere to this holding, but the decided weight of authorities is to the contrary. Wood, Ins. § 139, and authorities cited in note 1; Miller v. Insurance Co., 31 Iowa, 216; Insurance Co. v. Eddy, 55 Ill. 218; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152; Eams v. Insurance Co., 94 U. S. 621; Rowley v. Insurance Co., 36 N. Y. 550; May, Ins. § 143, and authorities cited; Kausal v. Association, 31 Minn. 17, 16 N. W. Rep. 430. In the case last above cited the supreme court of Minnesota uses the following language, which voices the result of the later authorities: “Agents for an insurance company, authorized to procure applications for insurance, and to forward them to the company for acceptance, must be deemed the agents of the insurers in all that they do in preparing the application, or in any representations they may make as to the character or effect of the statements therein contained. Hence, when such agent, either by his direction or direct act, makes out an application incorrectly, notwithstanding all the facts are stated to him by the applicant, the error is chargeable to the insurer, and not to the insured. This is the rule in case of ‘mutual’ as well as ‘stock’ or ‘proprietary’ companies. The rule is not affected or changed by a stipulation inserted in the policy subsequently issued that the acts of such agent in making out the application shall be deemed the acts of the insured, and not of the insurer. Such stipulation does not convert acts