
    12184.
    Wilcox v. Walker.
    Decided May 11, 1921.
    Rehearing denied June 14, 1921.
    Complaint; from city court of Tifton — Judge Price. January 18, 1921.
    
      J. B. Murrow, for plaintiff.
    
      Smith & Christian, for defendant.
   Broyles, C. J.

1. In a suit upon a note given for the first premium on a policy of life-insurance, where the undisputed evidence shows that the insured retained in his possession the policy of insurance (with a receipt attached thereto, acknowledging the payment of the first premium), and made no effort to return the contract of insurance to the insurer until after the note had matured and the policy lapsed, a verdict for the defendant is contrary to law. The insured cannot defeat payment of the premium on a policy of insurance, issued at his instance, while he still retains the contract, and especially where the policy had lapsed because of the failure of the insured to pay the seeond annual premium when due, and where the insured had enjoyed the benefit of the protection of the policy for one year. Under such conditions, payment of the first premium cannot be defeated by the insured pleading and showing that, he could not read or write, except ^to sign his name, and that he was induced to sign the application for the insurance by false and fraudulent representations as to the terms of the policy of insurance, made to him by the agent who solicited the insurance, and that he did not discover the real terms of the policy until after the note had matured, and that he then offered to surrender the policy. See, in this connection, Franklin Life Ins. Co. v. Boykin, 10 Ga. App. 345 (73 S. E. 545), and the same case in 14 Ga. App. 666 (82 S. E. 60).

2. Under the foregoing ruling, the verdict in favor of the defendant was contrary to law, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., conour.  