
    George B. Miller, Resp’t, v. Union Central Life Insurance Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Insubaxce — Recovery back op premiums.
    The insured is entitled to recover back the premiums paid and surrender the policy, upon discovery of fraud, where the company’s agent, in filling up the application, intentionally wrote a false answer without the knowledge of the applicant who signed the application upon the agent’s statement that it was all right.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      W. H. Meads, for app’lt; E. G. Mansfield, for resp’t.
   Dwight, P. J.

The action was to recover a premium paid by the plaintiff on the issuance to him of a life policy by the defendant, on the ground that such payment was procured by the fraudulent conduct and representations of the defendant’s agents. Several specifications of fraud were made by the complaint, all but one of which, however, were withheld by the court from the consideration of the jury. That one was submitted in the following language of the charge: “ It is the claim of the plaintiff that Wright (the general agent of the defendant), and the doctor associated, with him, produced and sent to the company a record which purported to be a medical examination of the plaintiff, which was inaccurate and fraudulent; that in it they recorded an answer that was not given by the plaintiff, and which was known by these parties as not to have been given by him, which answer, if made, would make the policy issued to the plaintiff void.” The plaintiff was a restaurant keeper, and kept a bar in his restaurant. Wright, the agent who took his application, was in the habit of taking lunch there, and knew very well the business in which he was engaged. He took the application in the restaurant, and in plain sight of the bar. He afterwards brought in the examining physician, and introduced him to the plaintiff, and the medical examination was taken, and reduced to writing, in a little room separated from the bar only by a lattice-work partition. In that examination occurred the printed question, “ Are you engaged in any way in the sale or manufacture of alcoholic, malt or vinous ? ” and to this the clan wrote the answer, “ Ho.” In respect to this question" "and answer, the plaintiff testified that neither the agent nor the medical examiner read that question to him; that they aslced him if he owned the bar,- and he told them he did; that they asked him if he ever tended the bar, and he told them he did once in a while, when the barkeeper was out. He testified that he did not read the examination after it was filled out, nor was it read to him, but that he signed it as he was told to do, on the statement that it was all right, and ignorant of the fact that it contained the question and answer above stated. The agent testifies that he was not present at the taking of the examination, and the medical examiner that he read to the plaintiff the question in dispute, and that he answered it in the negative. This made the single issue of fact which was submitted to the jury, and they found thereon in favor of the plaintiff. The court charged the jury that if the fact was as testified to by the plaintiff, that he informed the agent and medical examiner that he owned and kept the bar, and sometimes attended upon it himself, and the examiner inserted the negative answer to the question quoted, and took the plaintiff's signature to the examination without reading it to him, then the fraud complained of was established; that there was no room for the theory of mistake; and that .the jury might assume it was done for some ulterior purpose. There was no exception to this instruction, nor to any portion of the charge. In his complaint the plaintiff alleged that when he discovered, after the payment of the first premium on his policy, that he was recorded as having made the false answer to the question concerning his engagement in the liquor traffic, he requested the defendant, through its said general agent, to waive the provision in his policy which prohibited such occupation on his part, and that the defendant refused so to do. This allegation is supported by the testimony of the plaintiff, to the effect that he did make such request, and that the only proposition made to him in response was that if he would amend his answer in question, so as to state that he was the proprietor of the bar, but that he had a bartender, and did not attend to the bar himself, the company would give him the waiver; but that the plaintiff refused to make the answer in that form, for the reason that it would still have been a false answer to the question, and, as the court instructed the jury, on this point there was substantially no controversy. On the trial the plaintiff produced the policy, and offered then and there to cancel and surrender the same. This, then, is the case which went to the jury, and was determined by a verdict for the plaintiff, and that verdict was, no "doubt, sufficiently supported by the evidence. It is upon its exception to the denial of its motion for a nonsuit, and for the direction of a verdict, that the defendant depends for an argument in support of this appeal, and that upon the ground that, upon the facts testified to by the plaintiff, the defendant would have had no defense to an action on the policy. This may very well be conceded, but, the proposition is not to be entertained that, such being the facts, it was the duty of the plaintiff to go on through his lifetime paying the premiums on a policy which, on the face of the paper on which it had been procured by him, was void, and at his death leave to the beneficiary named therein the legacy of a lawsuit, without even the benefit of his testimony to prove the fraud which had been perpetrated upon him. We have no doubt, upon the facts established by the verdict in this case, that the plaintiff’s action was well brought, and the judgment properly rendered in his favor.

The judgment and order appealed from should be affirmed.

All concur. So ordered.  