
    MINNESOTA FARMERS MUTUAL INSURANCE COMPANY v. JOHN DJONNE.
    
    November 6, 1914.
    Nos. 18,808—(72).
    Insurance — fraud of agent.
    In this action to recover an assessment against a member of a Farmers Mutual Insurance Co. it is held that the evidence sustains the verdict of the jury, to the effect that defendant was induced to make application for the insurance by fraudulent representations on the part of the agent of plaintiff who solicited the application. Held, further, that plaintiff was bound by such representations, and that defendant was not guilty of negligence.
    
      Action transferred to tbe district court for Lac qui Parle county to recover an assessment of $17.68 levied upon defendant as member of plaintiff company. Tbe case was tried before Qvale, J., wbo denied defendant’s motion to dismiss tbe action and plaintiff’s motion for a directed verdict, and a jury wbicb returned a verdict in favor of defendant. Prom an order denying its motion for judgment in its favor notwithstanding tbe verdict or for a new trial, plaintiff appealed.
    Affirmed.
    
      William N. M, Crawford, for appellant.
    
      J. H. Driscoll, for respondent.
    
      
       Reported in 149 N. W. 371.
    
   Búnn, J.

This is an action to recover an assessment levied by plaintiff, a farmers mutual insurance company, against defendant, on a cyclone insurance policy theretofore issued to him. Tbe defense was that tbe application was procured by fraudulent representations on tbe part of tbe agent of plaintiff wbo solicited it. This issue was submitted to tbe jury and a verdict for defendant returned. Plaintiff appeals from an order denying its motion for judgment notwithstanding tbe verdict or for a new trial.

As we understand tbe charge of tbe trial court tbe only question submitted to tbe jury was whether tbe contract was procured by fraud. Tbe briefs argue another question, tbe legality or illegality of tbe assessment, but we think tbe case must turn on tbe sufficiency of tbe evidence to sustain a finding of fraud.

Tbe only evidence was tbe testimony of defendant, which was substantially as follows: In June, 1912, a stranger came to plaintiff on bis farm in Lac qui Parle county and solicited him for cyclone insurance. Plaintiff inquired tbe cost, and tbe agent told him it would cost him $10 tbe first year and $8 a year thereafter. Plaintiff then signed tbe application presented by tbe agent, and paid him $10. Plaintiff could not read or write, and testified that be relied upon the word of tbe agent that tbe writing contained tbe “bargain we bad been talking about.” This testimony was uncon-tradicted. In fact tbe application contained no language limiting tbe amount of assessments, but provided that tbe applicant agreed to pay all assessments made on him by the company, with interest, costs of collection and an attorney’s fee if suit was brought. The policy contained similar language.

In view of the fact that plaintiff was a foreigner and could not read or write, we think the evidence, though not over-convincing to us, cannot be held insufficient to justify a jury in finding fraud.

Plaintiff contends that it was not bound by the representations made by its agent. This contention is clearly unsound. The representations were made as a part of the very business the agent was employed to do, and were clearly within the scope of his authority. It is not a case of admitting evidence of a prior or contemporaneous oral agreement with the agent, contradicting the written agreement, but a case of fraud. Nor can.we sustain the view that the agent’s representation of the cost was but his estimate or guess. Nor was defendant necessarily guilty of negligence in failing to ascertain the meaning of the language in the policy after he received it.

Had it appeared that defendant knew that he was applying for insurance in a farmers mutual company, it might well be said that he was bound to know the law applicable to such companies, and that he had no right to rely upon the agent’s representations as to the cost. But it fairly appears that defendant knew nothing of the nature of the company or as to the character of the insurance he was to get, or whether he was to pay cash premiums, or assessments levied to meet losses. On the whole we do not feel justified in disturbing the decision of the trial court.

Order affirmed.  