
    William H. Palmer, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
    
      Life insurance — action by the insured to recover premiums paid on a void policy — false representations as to disease — voluntary payment.
    
    The holder of a policy of life insurance, which he had permitted to lapse, brought an action to recover the premiums paid thereon, upon the ground that he was induced to discontinue payment of the premiums by the statement of the assistant superintendent of the insurer that the policy was void, because the plaintiff, although afflicted with rheumatism at the time the policy was issued, had stated in the application therefor that he was not so afflicted.
    
      Held, that a recovery by the plaintiff could not be sustained where it appeared that the plaintiff did not inform the assistant superintendent of the fact (as claimed by him) that the agent who took the application and the agent who received "the premiums under the policy for five years, knew all about the plaintiff’s physical condition, especially where it further appeared that the ' plaintiff had voluntarily paid most of the premiums after he knew that the • policy provided that persons in his condition were not insurable.
    
      .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 Oneida on the 14th day of October, 1896, upon the- verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of October,. 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. W. Rayhill, for the appellant.
    
      J. S. Baker, for the respondent.
   Pee Curiam :

This action is for the recovery of $60.75 premiums paid on a policy of life insurance between September 20,1890, the date of the policy, and April 29, 1895. By the policy the plaintiff was insured for $125 for the benefit of his wife, in consideration of weekly payments of twenty-five cents during each week that the policy Was- in force. ’

The plaintiff asserts that he discontinued his payments, because the agents of the defendant informed him that nothing could be recovered under the policy if he was crippled with rheumatism when it was issued.

■ It is established by undisputed evidence that when the policy was issued’ the.plaintiff was crippled and disabled by the effects of rheumatism. -The plaintiff so testified. ,Notwithstanding this fact, he signed an application for the policy in which he stated that he was not then, and never had been, afflicted with rheumatism, which application was referred to in the policy, made a part thereof, and the statements declared to be warranties, and that, in case the statements ih the application were found untrue, the policy should be void.

If the defendant had no knowledge of the plaintiff’s physical condition except as derived from the application, the plaintiff perpetrated a fraud on the defendant, and has no right to recover the premiums paid thereon. If it be true, as the plaintiff testified, that when the policy was issued the - defendant’s superintendent. and agents knew all about the plaintiff’s physical condition and received the premiums thereon for five years, with full knowledge of his condition, the defendant would be estopped from asserting the falsity of the statement in the application as a defense and the policy was valid, in which case the plaintiff could not cease to perform the contract on his part and recover for the premiums paid.

To avoid the effect of these propositions the plaintiff sought to . show that shortly before he ceased to make the stipulated weekly payments he was induced to stop payment by the statement of defendant’s agent that the policy was not valid. He testified: I said to him (the assistant superintendent) 1 if I wasn’t insured in this Company, would you take me in the situation that I am and insure me.’ He says, No, I would not.’ He says, ‘It would be-good for nothing if I did.’ He says to me,£ Your policy isn’t good.’ Says he,‘But I have no doubt but that the Company.will do.what is right about it.’ Says he, I have no doubt but what the Company will pay back your money.’

The plaintiff did not testify that he told the assistant superintendent that, when the policy was issued,- the agent who took the application and delivered the policy knew all about the plaintiff’s physical condition, and that the agents who had received payments under the policy during the five years that the same had been in existence, knew all about the plaintiff’s physical condition. If the plaintiff had informed the defendant’s assistant superintendent of all the facts and the assistant superintendent then had induced the plaintiff to abandon payment on his policy by the statement that the defendant was not bound by it, some foundation might have been laid for a recovery of the premiums paid, but there is no such evidence in the case.

It seems to us that the evidence contained in the record is insufficient to sustain a verdict that the plaintiff was entitled to a return of the premiums, the most of which he had voluntarily paid after he knew that the policy provided that persons in his condition were not insurable.

The judgment and order should be reversed and a new trial-ordered, with costs to abide the event.

All concurred.

■Judgment and order reversed and a new trial ordered, with costs to abide the event. •  