73 Neb. 409 | Neb. | 1905
When this case was first considered by this court upon the former appeal, the questions and answers in the application for insurance upon which the decision now turns were set out in the opinion,.64 Neb. 330, and it was said that the answer of the company charged that the answers of the assured to the aforesaid questions “were knowingly and wilfully false, that they were material to the risk and were relied upon by the defendant.” The trial court had held that these answers were representations and not warranties, and in discussing that question the opinion referred to goes on to say:
“It is fair to presume that the association dealt with the assured in good faith, and that its acceptance'of her premium, receiving her into the order and issuance to her of the certificate in question, was more than an idle ceremony, and that it intended thereby to bind itself by a valid contract of insurance. There are upwards of a hundred questions in the application and medical examination. Many of them are of such a character, that no person, however honest his intentions, could answer them with any degree of assurance that each of his answers was literally true. To hold that such questions and answers amount to warranties would be to impute bad faith to the association in pretending to enter into a contract of insurance with the assured which could become binding upon it by the merest chance.”
It ivas decided that they were representations and not Avarranties, and this has become the law of the case. This
“You are instructed that the fifth point for your determination arises from the following question and answer in said application, to wit: ‘Have you ever had hemorrhages?’ Ans. ‘No.’ If you believe from the evidence that this representation * * * was willfully and knowingly false, and intended by the assured to deceive the defendant, * * * then the plaintiff cannot recover, and you should find for the defendant; but, if you believe from the evidence that said representation * • * * Avas not intentionally made to deceive the defendant, * * * then you should find for the plaintiff on this point.” '
As before pointed out, if she had suffered such a hemorrhage as the defendant claimed that she had, her ansAver to this question was of course false, and must have been knoAvingly and wi-llfully made.
The defendant requested the follOAving instruction:
“The fact is undisputed that, in the application for the benefit certificate herein sued on, Ada Wallace Avas asked the question, ‘Have you ever had spitting of blood or other' hemorrhages,’ and that her ansAver thereto was ‘No.’ You are instructed that the matter inquired about in said ques*414 tion was material to the risk. If you find from the evidence that at any time prior to the date of said application, to wit, July 2, 1897, said Ada Wallace had had spitting of blood or other hemorrhages, said answer to said question would work a forfeiture of the certificate herein sued on, and your verdict should be for defendant.”
This was refused, and exception duly taken. The vital question presented in these instructions in view of the evidence and whole manner of the trial was whether the deceased, before making her application, had suffered a hemorrhage of the lungs such as claimed by defendant. If she had, she must have been aware of the fact. It ivas a matter of the highest importance in determining Avhether she was then suffering with the disease which afterwards caused her death, and her answer could not have been in good faith. Was this question fairly submitted to the jury? With some hesitancy Ave have concluded that it was not. If the instruction given by the court could be justified by the condition of the evidence, and the manner of contesting this point before the jury, still a more specific instruction Avould have been proper, and the same reasoning that Avould justify the one given Avould also justify giving the one requested by defendant.
The judgment heretofore rendered is vacated, and the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.