
    Mary E. Peters, as Administratrix, etc., of Rody Peters, Deceased, Respondent, v. The United States Industrial Insurance Company, Appellant.
    
      Insurance — misstatements in the application not fatal where the ansioers to the agent are true.
    
    Where the insured gives true answers to the questions put to him as the basis of insurance, and an authorized agent of the company inserts in the application false answers, the company, and not the insured, is responsible for their falsity. Where, upon an application for insurance, the agent asks the applicant whether he is insured in other companies, and the wife of the applicant shows to the agent other policies of insurance held by her husband, her action is equivalent to a statement on behalf of the applicant that he has other insurance, and an answer to the contrary, written by the agent upon the application, is not a bar to a recovery upon the policy.
    •Appeal by the defendant, The United States Industrial 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 19th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order bearing date the 18th day of March, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward W. S. Johnston, for the appellant.
    
      Isaac M. Kapper, for the respondent.
   Willard Bartlett, J.: .

This suit was brought to recover $1,189 from the United States Industrial Insurance Company, being the aggregate amount of three several policies of insurance upon the life of Body Peters, the husband of the plaintiff. The application for the first policy was signed by the wife with the husband’s name at his request. The other applications were signed by the husband with his mark. The agent of the insurance company, in the presence of Mr. and Mrs. Peters, wrote down the answers of the insured to the questions upon each application. Among the answers as they now appear are statements to the effect that Body Peters was not insured in any other company. As a matter of fact he was insured in other companies at the time. The defendant relied upon the falsity of the written answers in this respect as a breach of warranty avoiding the policies. The plaintiff introduced evidence tending to show that the answers were not correctly written down by the agent, and that the agent was not only informed of the existence of insurance in other organizations when engaged in 'filling out the applications, but that she showed him the other policies then in force upon her husband’s life. She testified that the agent did not read the answers to Mr. Peters after he had finished writing them. The plaintiff’s testimony as to what occurred when the applications were prepared was wholly uncontradicted, as the defendant did not put the agent on the stand.

The only point argued on this appeal from the judgment which the plaintiff has recovered is the proposition that the defense of breach of warranty in respect to other insurance is available to the-company notwithstanding the knowledge of the agent who wrote out the application that other insurance in fact existed.

It seems to us, however, that the case falls within the principle of the doctrine laid down in O'Brien v. Home Benefit Society (117 N. Y. 310) that “ where the insured gives true answers to the questions put to him as the basis of insurance, and an authorized agent of the insurance company inserts in the application false answers, the company, and not the insured, is responsible for their falsity, and that their falsity is no defense to an action upon the policy.” (See, also, Robinson v. Metropolitan Life Ins. Co., 1 App. Div. 269.)

In the light of the plaintiff’s testimony and the inferences fairly to he drawn from it, tlie agent appears to have asked Body Peters whether his life was then insured in any other company, whereupon Mrs. Peters herself produced and and exhibited to him some of the policies and informed him of all the other insurance. This was equivalent to answering “ Tes,” in behalf of the insured, to the question in the application, “ Is life proposed now insured in any other conrpany ? ” The answer was true. The agent wrote down. “ No,” which was false. For this falsity the defendant is responsible under the authorities cited.

In those cases, it is true, the applicants for insurance were unable-to read, while here the proof shows that the applicant could read;, he could not write anything more than perhaps his own name.. It does not seem to me, however, that any distinction in principle can be based upon this difference. In filling up the application, the agent: of the defendant volunteered to read the questions correctly to the insured and write down correctly such answers as should be given by him or in his behalf. The applicant undertook nothing except, to give true answers, and having done this, as the jury must have-found, his representative is not chargeable with the consequences of the agent’s fraud or mistake.

The cases on the defendant’s brief are either distinguishable from. O'Brien v. Home Benefit Society (supra), or so far as they contain, anything in conflict with that decision must be deemed overruled.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  