(dissenting).
I respectfully dissent.
The plaintiff knew that he had been rejected by the Allstate Insurance Company, yet in his application with defendant he denied this fact. His argument that he had not been denied insurance coverage because he had withdrawn his application, is sheer sophistry. Whether he acted fraudulently, negligently, or innocently, is not controlling. Modisette v. Foundation Reserve Insurance Co., 77 N.M. 661, 427 P.2d 21 (1967). As to the materiality of this misrepresentation, Mr. Meyer, the defendant’s general agent in Albuquerque, testified in part as follows:
“Q. Are you familiar with the underwriting policies of Aetna?
“A. Yes, I am.
“Q. Is it important from an underwriter’s standpoint to know about prior insurance applications made by an applicant, and whether or not those applications have been denied?
“A. Yes, because it helps personal history on the individual.
“Q. And knowledge about prior applications is material in determining insurability?
“A. Yes, it is; sure is.”
Terse as these answers were, nonetheless, they were not refuted. However, irrespective of these answers, I believe that the materiality of the answer to the question is self-evident because it relates directly to the plaintiff’s insurability. The materiality of an answer to such a question is determined by the probable and reasonable influence it would have on an insurer’s decision whether or not to accept the risk, and if so, with what qualifications. Rael v. American Estate Life Insurance Company, 79 N.M. 379, 444 P.2d 290 (1968).
The trial court, in my opinion, erred in not granting the defendant’s motion for judgment N.O.V., because in my opinion, there was neither evidence nor inference from which the jury could have arrived at its verdict. See Tapia v. McKenzie, 85 N.M. 567, 514 P.2d 618 (Ct.App.1973).