
    Sarah J. McElwain, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    
      Insurance — a premium paid on an invalid policy cannot be recovered where the company waives the invalidity and agrees to pay the policy on the death of the insured.
    
    A life insurance company lias power to waive rules adopted by it, requiring the making of a printed or written application as a condition of issuing a policy of insurance, and providing that an application for insurance upon the life of a husband for the benefit of his wife would not be accepted unless the husband understood and consented to the insurance, and that the application must be personally signed by the person applying for the insurance and by the person whose life was to be insured, and that a policy issued in violation of such provisions was void.
    A woman who, upon a parol application, obtains a policy of insurance in such company upon the life of her husband without his knowledge or consent, is not, after she has paid the premiums thereon for six years, entitled to recover such premiums, where it appears that the insurance company, upon being notified of the alleged invalidity of the policy, replied that it was willing to continue the insurance and pay the policy at the death of the insured.
    Appeal by the plaintiff, Sarah J. McElwain, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 1st day of June, 1899* upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 26th day of June, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Harold O. Mitchell, for the appellant.
    
      Eugene Van Voorhis, for the respondent.
   Williams, J.:

The action was brought to recover premiums paid by plaintiff upon a policy of insurance issued by the defendant upon the life of tlie plaintiff’s husband. The ground upon which the plaintiff sought to recover was that the policy was void, and had been so since it was issued, and the defendant, never having been liable upon the policy* was not entitled to receive or retain the premiums so paid.

The policy was issued June 8, 1891. The premiums were paya* ble twenty-five cents a week, and were paid until April 3, 1897, when the plaintiff was advised of the invalidity of the policy, and made claim for the return of the premiums so paid.

The defendant alleging the validity of the policy, and refusing to repay the premiums, this action was commenced.

The policy by its terms was issued in consideration of the warranties and agreements in a printed and writtén application for such policy, respecting the person whose life was insured, which application was referred to and made a part of the policy.

A premium receipt book was issued with the policy, containing rules and regulations of the company, wherein it was provided, among other things, that an application would not he accepted upon the life of a husband for the benefit of his wife unless the husband understood and consented to the insurance, and that the application must be personally signed upon its face by the person applying for. the insurance, and upon the back by the person whose life is to be insured; and that if a policy was issued in violation of these provisions, it was without the knowledge or consent of the company, by the wrongful act of the applicant, and in fraud of the company, •and all premiums paid thereon, after the issue of the receipt book, would be forfeited to the company, and the policy so obtained would be null and void.

The evidence showed that no written or printed application for "the policy was ever made by the plaintiff, but that the policy was issued upon her parol application ; that her husband never knew of the insurance until the commencement of this action, never signed any application on its back, and never consented to the insurance in •any way. ' The policy under these circumstances was issued by the •defendant and delivered to the plaintiff, and the premiums thereon were paid by the plaintiff to the defendant for nearly six years, and when the attention of the defendant was then called to the alleged invalidity of the policy, the reply was that it had not declared the policy invalid, and that it was willing to continue the insurance and to pay the policy at death.

The plaintiff upon this undisputed evidence claims that the policy was void at the time it was issued, and has been void- ever since. We cannot assent to this proposition. It will be remembered that there is no question here as to a delivery of the policy by an unan■thorized agent. So far as appears, the policy was delivered by the •defendant itself. Nor is there any question here as to the signing ■of an application personally by the applicant or the person whose life it insured. There was here no written or printed application of ■■any kind, and we must assume that the defendant had knowledge when it issued the policy that there was no such application, and no ■consent to the insurance by the person whose life was to be insured. 'This being so, the defendant waived the application and consent. It had the legal power to make such waiver, and to issue a valid policy without the application and consent. When this case was before ■this court upon a former appeal (33 App. Div. 60) the complaint had been dismissed for the reason that the facts stated therein did ■not constitute a cause of action, and this court held that the judgment should be reversed because the question of waiver was a matter of defense, and could only be established by proof or concession. This court was then of the opinion that the rule adopted by the ■defendant, requiring an application for insurance to be personally ¡signed by the person whose life was to be insured, as a condition of ■the issuing of a policy, was a detail of the business which might be waived by the insurance company. (Citing Wells v. Metropolitan Life Ins. Co., 19 App. Div. 18, 25.) The same must be true as to the .requirement of a written or printed application. It was a detail of the business and might be waived. There was no law requiring an appli- ■ cation for a policy to be written or printed, or requiring any particular ■statements to be made in such application, as a basis for the issuance of the policy. It was a matter of regulation and requirement by the company, and if the company saw fit to issue this policy without ■such an application, and to receive the premiums thereon year after year, it had the legal right to do so, no question of authority in an officer or agent being raised.

Questions of a similar nature have frequently arisen in fire insurance cases where policies have been claimed to be void by reason of ■failure to comply with the rules and regulations established by the ■companies, and it has uniformly been held that a company could not •defeat a recovery upon a policy by proving the existence of facts which would render the policy void when the company itself had dull knowledge of the facts at the time the policy was issued; that it would be presumed, if anything was omitted which was necessary to make the policy valid, it was by mistake or was waived, or the company was estopped from setting it- up against the policy. (McNally v. Phoenix Ins. Co., 137 N. Y. 389; Forward v. Cont. Ins. Co., 142 id. 382; Wood v. American Fire Ins. Co., 149 id. 382 ; Robbins v. Springfield Fire Ins. Co., Id. 477; Cray v. Germania Fire Ins. Co., 155 id. 181; Thebaud v. Great Western Ins. Co., Id. 516.)

The policy in question was, under the circumstances shown by the evidence in the case, a valid policy and binding upon the defendant from the time of its issue. The defendant carried the insurance upon the life of the plaintiff’s husband for the benefit of the plaintiff for six years and earned the premiums paid therefor, and the plaintiff is not entitled to recover them back.

The case was properly disposed of by the trial court, and the judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  