
    Julienne C. Williams, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
    Second Department,
    December, 1905.
    Life insurance — failure of defendant’s agent to state in application blanks facts communicated by insured — when insurance agent acts for insurer — when evidence of statements by insured as to prior application for insurance admissible.
    When one applying for life insurance is shown to have informed the insurer’s agents that he had made a previous application for insurance to another company, and such agents, who filled out the application and medical examination blanks, do not insert such fact and ask and permit the applicant to sign said papers without reading them or hearing them read, a verdict in favor of the beneficiary under such policy will be sustained.
    
      When it does not appear that the insured agreed that the agent filling out said blanks should be his agent, his conversation -with such agent stating his said-prior application to another company is admissible, for in such case the presumption is that the agent acts for the insurer., "■
    Appeal by the defendant, The-Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1905, and also from an order entered in said clerk’s office on the 25th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Paul Grout, for the appellant.
    
      George W. Martin [.Richard W. Newhall with him on the brief], for the respondent.
   Woobward, J.:

On the 10th day of February, 1898, the defendant company issued two policies of insurance upon the life of -Frank C. Williams, the plaintiff in this action being the beneficiary. The policies were ( for $500 ‘ each, this form being adopted upon the, suggestion of defendant’s agent, because the examinations were a little less rigid for $500 policies than for larger ones. Upon the death of - the insured the defendant company refused payment upon various grounds, but upon the trial all of the -issues, excepting those relating to the answers to questions in the application and in- the medical examination were eliminated, and the learned court submitted to the jury two questions, as follows

“ 1. Did Frank'C. Williams, at the time of signing the application for insurance, inform the defendant’s agent of the fact that he had made application to the Prudential Insurance Company ?

“ 2. ,Did Frank C. Williams at the time of signing the report of medical examination by Dr. Francis I. Leonard, inform the said D.r. Leonard that he had made application to the Prudential Insurance Company % ” ' ’

The jury, under a careful charge from the court, has answered these questions in the affirmative, and under the authorities- in this State the plaintiff is entitled to recover. The application for the insurance,1 as well as the medical examination blanks, were filled out by the company’s agents; they were told, as the jury has found, that the insured had made a previous application to the Prudential Insurance Company, yet these agents of the defendant did not record the fact, but asked and permitted .the insured to sign the papers without reading them or hearing them read, tinder such circumstances it is clearly competent to show the facts, and, the jury having found in favor of the plaintiff, the judgment, in the absence of legal error, should be affirmed.

It is urged on the part of the defendant that the verdict is contrary to the evidence and against the weight thereof, but we are unable to agree with this proposition. It is true, of course, that the evidence of the plaintiff, as it appears in the printed record, is not entirely satisfactory; that it was not wholly satisfactory to the learned justice presiding upon the trial is evidenced by his opinion in the case, but it cannot be said that there was no evidence to support the plaintiff’s case, and the evidence on the part of the defendant is lacking in that clearness which might be said to constitute the weight of evidence where there are two witnesses opposed to each other. The learned justice testifies to the intelligence of the jury to whom the facts were submitted, and in the absence of a clear weight of evidence against the plaintiff’s theory, we are not disposed to disturb the finding of the jury.

The only error urged was raised by the objection and exception of the defendant to the evidence of the plaintiff as to a conversation with McCarthy, the defendant’s agent, who filled out the application blanks and asked the insured to sign them. This conversation related to the previous application of the insured to the Prudential Insurance Company, and if McCarthy was the agent of the defendant, there can be no doubt of its competency. It does not appear that the insured agreed that McCarthy should be his agent in the filling out of the application blanks, as was suggested might be done in Sternaman v. Metropolitan Life Ins. Co. (110 N. Y. 13), and in the absence of such a stipulation the presumption must be'that the solicitor was acting in behalf of the company, and it was proper, under the case "cited and the authorities which it reviews, to show that the insured gave the proper information ; that he stated the truth, and that the defendant’s agents, through design or inadvertence, stated the facts differently.

We' fail to find in the record any evidence of facts constituting an estoppel upon the plaintiff to show the facts as they -actually existed at the time the application was made, or that the insured was in any manner a party to the misrepresentation of the facts.-

The.judgment and order appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  