
    Knights of Maccabees of the World v. Shields.
    (Decided January 20, 1914.)
    Appeal from Nelson Circuit Court.
    Insurance, Life — Return of Premiums When Policy Canceled for Fraud — Practice.—When the defense is that the policy was obtained by fraud the company need not, with its defense, make a tender of the premiums received, but if on the trial of the case there is a judgment for the company upon the ground that the policy was procured -by a fraud, there should also be a judgment against the company in favor of the beneficiary in the policy for the amount of premiums paid to the company.
    NAT W. HALSTEAD, G. ALLISON HOLLAND and JOHN A. PULTON for appellant.
    KELLEY & CHERRY for appellee.
   Response to Petition por Rehearing by

Judge Carroll

Overruling.

The opinion in this case may be found in 156 Ky., 270.

As to whether an insurance company,*'that seeks to defeat the collection of a policy upon the ground that it was procured by fraud, must, in connection with its defense, tender hack the premiums received, there is conflict in the opinions of this court. Metropolitan Life Ins. Co. v. Moore, 117 Ky., 651; Provident Savings Life Assurance Society v. Whayne, 131 Ky., 84.

We do not think it necessary, when the defense is that the policy was obtained by fraud, that the company should, with its defense, make a tender of the premiums received, but if on the trial of the case there is a judgment for the company upon the ground that the policy was procured by fraud or misrepresentation, and, therefore, void from the beginning, there should also be a judgment, without additional pleadings, against the company in favor of the beneficiary in the policy for the amount of the premiums paid to the company as shown by the pleadings and evidence, with interest thereon from the date of these payments. But if the court cannot from the pleadings and evidence determine with certainty the amount for which judgment should go, the parties may by additional pleadings make an issue on this subject, and upon hearing the matter the court should give judgment according to the right of the case. National Council v. Thompson, 153 Ky., 636.

The petition for a rehearing is 'overruled.  