Page:North Dakota Reports (vol. 48).pdf/319

 FRANK ISAAC PLOTNER, Respondent, v. NORTHWESTERN NATIONAL LIFE INSURANCE CO., a corporation, Appellant.

Insurance—insured’s omission of one instance of consulting physician and failure to state disease from which she was suffering held not a warranty voiding policy.

1. Where an applicant for life insurance was requested in the application therefor to name all causes for which she had consulted a physician in the last ten years, and to give the name and address of physician, the date of consultation, duration of disease and remaining effects, and where, in her answer, she omitted to name one instance when she consulted a physician; and further failed to state what, if any, disease she then had, as informed thereof by the physician, it is held, for reasons stated in the opinion, that her failure to do so was merely a representation and not a warranty, and did not, in the circumstances considered in the opinion, operate to void the policy.

Insurance—where policy incontestable after one year, there was no defense thereon when premium paid.

2. The policy of insurance contained a provision, in substance, that, after the expiration of one year from the date of issuance thereof, it would be incontestable for any reason except the nonpayment of premiums, as provided by the policy. It was not rescinded, nor any steps taken to contest the same, until after the expiration of the year. It is held, that, in these circumstances, there being no default in the payment of premium, that there is no defense to an action for the recovery of the amount specified in the policy.

Appeal from a judgment of the District Court of Williams county, and from an order denying judgment in defendant’s favor on the special verdict, Fisk, J.

Judgment affirmed.

Fisk & Murphy, for appellant.

“No oral or written misrepresentations made in the negotiation of a