concurring. I concur in the reversal and remand of this case but want to make my position clear on a couple of points.
The trial court’s instruction No. 10 told the jury that knowledge obtained by appellee’s soliciting agent could not be imputed to the appellee. This was objected to on the basis that it was an incorrect statement of the law. In addition, the court refused to give appellant’s requested instruction “E” which would have told the jury that the agent’s knowledge of appellant’s preexisting medical condition was imputed to the appellee. I think it may be important to know why it was error to give the appellee’s instruction and to refuse the appellant’s.
Although some cases are explained on the basis of waiver, Reliable Life Ins. Co. v. Elby, 247 Ark. 514, 446 S.W.2d 215 (1969), or estoppel, Interstate Fire Ins. Co. v. Ingram, 256 Ark. 986, 511 S.W.2d 471 (1974), I think the real basis is explained in Jackson v. Prudential Ins. Co. of America, 564 F.Supp. 229 (W.D. Ark. 1983), as follows:
The distinction ... is that . . . the insurance agent, whether a general or soliciting agent, had been given authority by the company to obtain the information necessary to complete the application, and to accept the “knowledge” obtained in doing so. That is his “job,” so anything he learns in relation thereto is imputed to the company.
Id. at 235. See also M.F.A. Mutual Ins. Co. v. Jackson, 271 F.2d 180 (8th Cir. 1959); DeSota Life Ins. Co. v. Johnson, 208 Ark. 795, 187 S.W.2d 883 (1945); Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S.W. 792 (1917).
This reason may be important in other respects but I mention it in view of the majority opinion’s characterization of Aetna Life Ins. Co. v. Routon, 207 Ark. 132, 179 S.W.2d 862 (1944),as an “exception” to the rule expressed in Jackson. I do not regard Routon as an exception. That case simply holds that “if the agent in collusion with the applicant makes the false and fraudulent representations upon which the insurance is obtained, the fraud will vitiate the policy, even though the agent is acting within the apparent scope of his authority.” This issue of collusion was not raised in the first trial, but if it is to be an issue on retrial, I think it should be understood that the rule in regard to collusion is not an exception to the rule expressed in Jackson in regard to the imputation of the agent’s knowledge to his company. Both rules may be operative in the same case. See Mutual Aid Union v. Blacknall, supra.
Also, I want to note that the appellant did not admit that she signed the appellee’s first letter on the bottom line to indicate that the information in the application was incorrect. The appellant and her husband each denied that appellant ever signed that line; they both testified that she signed the top line only. Appellant said she signed the top line because she had told the agent about her prior surgery and he had said to ignore it. She said “he was selling it and I was buying it,” and “I figured if it was good at first it was still good.”
This brings me to my second point. The appellant testified that at the time she made the application for the insurance she had no symptoms of her previous illness and that, three years later, when she went back to the doctor she “didn’t think it was nothing like that again.” In view of the appellant’s testimony and the possible new issue of fraud by the agent in collusion with the appellant, I think the appellant’s husband should be permitted to testify that appellant told the agent that the doctor told her the first brain tumor was not malignant. Objection to that testimony was sustained in this trial. On retrial it should be admissible, not to prove the truth of the matter asserted, but to show that the statement was made. For that purpose I do not think it is hearsay, and it would be relevant on the issue of fraud by the agent in collusion with the appellant. Of course, the appellant’s testimony that the doctor made that statement to her would be admissible on the issue of her fraud.