
    Frank Nassl, Plaintiff, v. The Metropolitan Life Insurance Co., Defendant.
    (Supreme Court, Montgomery Special Term,
    February, 1897.)
    1. Insurance — Life — Company not bound by fraudulent application.
    An insurance company may be bound by the acts of its agents, but cannot be bound by a conspiracy in which its agents and the other contracting party aré participants.
    2. Same — Fraud.
    Where a person whose application for life insurance»has been rejected-makes a second application, upon which the examination is intentionally made by a different examining physician, whose examination is not as strict as the first, and it is undisputed that the applicant must have beén suffering from a serious disease at the time, such examination is a fraud on the company which will destroy the application.
    
      Motion by defendant for new trial and to set aside verdict in favor of .plaintiff, under section 999 of the Code.
    John DeWitt. P.eltz and Martin T. Hachtmann, for motion.
    H. V. Borst and Harvey Book, opposed.
   Stoveb, J.

The motion for a new trial is based upon error in the consideration of the effect of the application. - it would seem that a person able to read and write the -English ■ language, ought' to be held to a contract signed by him, even when made with an insurance company; and were the questions new, 1 should be inclined to hold that the circumstances in this case do not present a question for the jury, but one for the court, and I think the judge at the trial should have directed a verdict dismissing the complaint. Under the adjudicátions, however, it is difficult for a judge at Trial Term to determine to what extent the ordinary rules of construction of contracts have been modified in the case : of' applications for insurance. In this case, the principal testi- ■ mony'to sustain the verdict is that of the mother of the deceased, who is not familiar with the English language, and had great difficulty ,in making herself understood upon the witness-stand. It is, however, apparent that there had been a previous examina- ^ tion of the deceased, and he had been rejected by this company; that another application .was then made, and an examining physician other than the one who made the first examination was called in. It also appears that this was done intentionally and ' the witness stated that the doctor who made the second examination was not- as strict as the one who made the first.. This being. So, and it being undisputed that at the time the examination was made 'the insured must have been suffering from- a serious 'dis- . ease, -it must be held a fraud upon the company, in which both the agent of the company and 'the insured .participated. Ho' discussion need be entered, into to determine that such á fraud would destroy the application. A company may- be bound by .the acts of its agents, but it is not' to'be bound by a conspiracy in which its agents and the other contracting party are. participants. This, together with the fact that the evidence is, unsatisfactory, and not such as ought to prevail against the clear statements of the policy, I am constrained to hold that .the verdict is against the weight of evidence, and a, new trial must,, therefore, be granted.

Motion granted.  