A bare statement of the facts shows the fraudulent nature of the plaintiff’s claim. Rachel Rakov, the mother, had a policy of insurance in the Penn Mutual in favor of her daughter, Mrs. Wolson, and on May 12, 1911, obtained a policy in the defendant company in favor of the plaintiff, her son. An application for insurance was made in her name, August 23, *6461907, to the Home Life Insurance Company and was rejected. Another application was made that month to the New York Life Insurance Company and rejected. In June, 1908, an application for insurance upon her life was made to the Manhattan Life Insurance Company and was rejected. In 1910 an application was made to the Pittsburgh Life Insurance Company for a policy, and upon examining her the doctor found her condition of health such that he rejected her, never having sent on the application. In the application for the defendant’s ' policy she states that she never had applied to any company for a policy without receiving the policy applied for and no medical examiner had given an unfavorable opinion of her physical condition with reference to life insurance.
The plaintiff seeks to avoid the effect of these false representations by the testimony of Mrs. Wolson, corroborated in part by her sisters, that the applications upon which no policies were issued were a fraud upon the mother and that she did not know insurance was being applied for; that this fraud was resorted to because the mother objected to the bother of having policies upon her life and was led by her daughter and the agent to believe that the examinations were with reference to the old policy in the Penn Life. The agent and the physician concerned with each application swear to facts showing that she had knowledge that she was making application for insurance at the time. The evidence of Mrs. "Wolson directly contradicts the testimony of the physician and the agent and her evidence is improbable upon its face. Clearly the mother did not object to the bother of having a policy when the plaintiff obtained the policy in question. There seems to have been no discussion or trouble in that respect. The statement that the mother did not know that the policies were being applied for is evidently false. The mother died within a year after the policy was taken. It is evident the application for the policy in suit was intended as a fraud upon the insurance company and that the attempted fraud is being sustained by deliberate false swearing. The evidence shows clearly that the statements in the application to the defendant company that the applicant had not applied for a policy which she did not receive and that no medical examiner had' given an unfavorable opinion of her *647physical condition with reference to life insurance, were false to the knowledge of the applicant and were intended as a fraud upon the company. The judgment should, therefore, be reversed as against the evidence.
It is urged, however, that two juries have been deceived by 1 this perjured testimony and that, therefore, the fraud based upon it should stand. I know of no .such rule. The courts are remiss in their duty if a judgment is permitted to stand which rests solely upon perjured testimony. The fraud upon the court is no less a fraud because it has been perpetrated one or two times before.
The question seriously litigated was whether Mrs. Rakov made the prior applications other than to the Penn Mutual or whether they were fraudulently made by Mrs. Wolson without her knowledge or consent in the belief that the examinations were with reference, to the old policy in the Penn Mutual, the court holding, in substance, that if Mrs. ‘Wolson’s version of the transaction was true Mrs. Rakov had not made the applications. The defendant requested the court to charge that if Mrs. Rakov applied to another or other insurance companies, society or agent for life insurance and did not receive the policy applied for from such other insurance company, society or agent prior to her application for the policy in suit, the jury must find for the defendant. There was ho pretense that Mrs. Rakov had forgotten any application made by her; the position taken by the defense was that she had not made the applications. I think, under the circumstances, the defendant was entitled to this charge with such modifications as the circumstances made necessary, and that its refusal was error.
I favor a reversal of the judgment and a new trial, with costs to the appellant to abide the event.
All concurred (Smith, P. J., in memorandum), except Howard and Woodward, JJ., dissenting.