#### GWALTNEY v. PROVIDENCE SAVINGS LIFE ASSURANCE SOCIETY.

(Filed June 10, 1902.)

LIFE INSURANCE — Premiums—Fraud—Deceit—Demurrer.

In an action by a policy-holder to recover premiums, a demurrer should he overruled where the complaint alleges that the defendant, through its agent, induced him to take the policy through fraud and deceit.

ActioN by W. E. Gwaltney against the Provident Savings Life Assurance Society of New York, heard by Judge W. A. HoTce, at February Term, 1902, of the Superior Court of Catawba County. From judgment for the plaintiff, the defendant appealed.

Thos. M. Hufham, for the plaintiff.

Maxwell & Keerans, for the defendant.

Furches, C. J.

It appears from plaintiff’s complaint that in December, 1889, he took a policy of insurance for $3,000 in defendant company, for which he paid a quarterly premium of $22.41 for nine years. That the premium was then increased to $28.01 per quarter, which the plaintiff paid for two years, when it was again increased to $41.73 per quarter, *630and upon plaintiff’s failing and refusing to' pay tbis last advanced premium, the defendant cancelled the plaintiff’s policy. The premiums the plaintiff had paid the defendant on this policy before cancellation amount t» $1,030.84. Plaintiff alleged that it was distinctly understood and agreed between him and J. Sterling Jones, who was the general agent of the defendant, that he was. never to be required to' pay more or a greater rate of premium than $22.41 per quarter, and that the policy was to. be continued at this rate during the life of plaintiff ; that he distinctly informed the said Jones that he would not take the policy upon any other terms; that he was not a business man; was at the time of taking said policy a neighbor of said Jones and had confidence in his honesty and integrity, and that Jones knew this. But that Jones took advantage of his confidence and wickedly, designedly, fraudulently, and with the purpose to cheat and defraud the plaintiff, had given him a policy which, the defendant contends, is not what is called a level policy, upon which a premium of $22.41 is to. be paid quarterly, but is one on which the premium may be increased, and defendant has wrongfully increased it to $41.73 per quarter, and upon his refusing to pay this wrongfully increased premium, defendant has cancelled plaintiff’s policy, and this action is brought to recover the $1,030.84 io wrongfully paid the defendant.

T'o this complaint defendant demurred. The demurrer admits the allegations of the complaint, which contains the most fearful allegation -of fraud and deceit practiced upon the plaintiff for the purpose of cheating and defrauding him by wicked design and falsehoods, to get him to take a policy, that Jones knew he would not take if he knew the truth, and knew it was not a level policy.

The complaint alleges that J ones was the general agent of the defendant and had the right to contract with the plaintiff; that he was acting for the defendant, and that the plaintiff is *631bound by bis acts and wbat be did and said, and tbe demurrer admits tbe truth of these allegations.

The case presents very interesting questions for the Court, if, upon tbe trial, tbe plaintiff should sustain tbe allegations of bis complaint. But be may not be able to sustain them, and then they would not arise to trouble tbe Court. Therefore, if we should undertake to pass upon them in this appeal, wbat we might say would be but obiter Meta. Therefore, without passing upon them, or in any way intimating an opinion, we will say that we would not like to sustain a demurrer that admitted tbe fearful allegations of deceit and fraud that are set forth in plaintiff’s complaint. Tbe judgment of The Court overruling the demurrer and allowing tbe defendant to answer, is

Affirmed.