ERROR
from the district court of Douglas county. Tried below before
DICKINSON, J. Affirmed.
AFFIRMED.
Byron
G. Burbank, for plaintiff in error.
Macfarland & Altschuler, contra.
SULLIVAN
J. IRVINE, C., dissenting.
OPINION
SULLIVAN, J.
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, 69 N.W. 135. There
was, also, a supplemental opinion denying a rehearing, which
appears in 50 Neb. 846, 70 N.W. 392. 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 true, and it is agreed
that this warranty shall form the basis and shall be a part
of the contract between me and said association, and that it
is the consideration of the contract hereby applied for. I do
further agree that if any of the answers or statements made
and contained herein are not full, true, and complete, or
that if the same, or any of them, whether made in good faith
or otherwise, are in any respect untrue, then said policy and
this contract shall be null and void." The policy itself
contains this clause: "If any statement made in the
application for this policy of insurance is in any respect
untrue, then, and in each and every such case, the
consideration of this contract shall be deemed to have
failed, and this policy of insurance shall be null and
void." On the second trial the jury returned a general
verdict in favor of the plaintiff, together with the
following special findings of fact:
"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
predecessor of the defendant, the Omaha Life Association,
rely and act upon 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...
