55 Neb. 330 | Neb. | 1898
This case was here before. An opinion reversing the judgment of the district court and remanding the cause for another trial will be found reported in 49 Neb. 842. There was; also, a supplemental opinion denying a rehearing, which appears in 50 Neb. 846. The application for insurance contained a large number of categorical answers to questions propounded by the insurer to the insured for the purpose of determining the'advisability of issuing the policy in suit. In relation to these answers .the application provides: “And I do hereby declare and agree that each and every statement and answer contained in this application is material to the risk, and I do hereby warrant all the answers and statements, and each and every one of them contained herein, whether written by my own hand or not, to be full, complete, and
“1. Were the statements and answers as written in the application for the policy in this suit made by the deceased, William F. Kettenbach? Answer: Yes.
“2. Were the statements and answers in said application for said policy made intentionally by the said William F. Kettenbach. Answer: Yes.
“3. Did the said William F. Kettenbach, within ten years prior to the date of said application, January 15, 1891, consult and obtain medical treatment of Dr. O. S. Runnels, or of any medical man other than Dr. Morris? Answer: Yes.
“4. Did Dr. Runnels treat professionally the said William F. Kettenbach, deceased, in the years 1887, 1888, and 1889? Answer: Yes.
“5. Did the said William F. Kettenbach have the disease of exophthalmic goitre in 1887, or in 1888, or 1889? Answer: No.
“6. Did the deceased, William F. Kettenbach, at the date of said application have the' disease of exophthalmic goitre? Answer: No.
“7. Did the Pythian Life Association, which is the*332 predecessor of the defendant, the Omaha Life Association, rely and act npon the statements and answers in said application for said policy by issuing the policy in suit to the said William F. Kettenbach, deceased? Answer: Yes.
“8. Did the said William F. Kettenbach, deceased, die of the disease of exophthalmic goitre? Answer: Yes.
“9. Did the said William F. Kettenbach, within three years prior to 1891, have a disease of the genito-urinary organs? Answer: Yes.
“10. Did Dr. Runnels treat professionally the said William F. Kettenbach in 1887, 1888, or 1889, for impotency? Answer: Yes'.
“J. W. Coburn, Foreman.”
■Upon these findings the defendant moved for judgment. The court denied the motion and gave judgment for the plaintiff on the general verdict.
The question presented for decision is whether the facts established by the special verdict are conclusive of defendant’s right to a judgment in its favor. We think they are not. Speaking of the essential elements of a good defense to the action it was said in the former opinion: “That in order for such representations to constitute a defense "to this action it is incumbent upon the insurance company to plead and prove that the statements and answers were made as written in the application; that they were false; that they were false in some particular material to the insurance risk; that they were made intentionally by the insured; and that the insurance company relied and acted upon such statements; and these were questions of fact and not of law.”
In the opinion on the motion for a rehearing this language is used: “The defense of the insurance company to this action proceeded upon two theories: (1) That the statements made by the assured in his application were warranties; and (2) that if the statements made were representations they were false. In the opinion filed in the case we held that the statements of tbe assured in
Affirmed.