Page:North Dakota Reports (vol. 48).pdf/321

 issued by the defendant to plaintiff and wife on the 28th day of July, 1919. The complaint is in the ordinary form in such cases.

The answer admits that defendant is a foreign corporation, engaged in business in its special line, in the state of North Dakota, and that plaintiff and Amelia Victoria Plotner were, prior to the 28th day of July, 1919, and until decease of the latter, husband and wife. It admits the death of the latter, which occurred on December 15, 1919; that due proof of death was furnished to it, and that it refused payment of the claim. Otherwise, it interposed a general denial to the allegations of the complaint, and, in addition thereto, pleaded as part of its defense certain questions propounded by a medical examiner to the insured, and the answers given thereto by her. Those questions are as follows:

Name all causes for which you have consulted a physician in the last 10 years; illness, name and address of physician, date, duration, any remaining effects. Answer: Appendicitis; Dr. Sweitzer; St. Paul, 1915; 10 days; good recovery.

Have you had gallstones, or any disease of the liver? Answer: No.

Give full particulars of any other diseases or injuries you have had. Answer: None.

Are you now in good health as far as you know and believe? Answer: The best.

All of which answers are alleged as false and untrue, and made for the purpose of deceiving and defrauding the defendant.

The case was submitted to a jury for a special verdict, by 21 special questions. The first 6 of these are not necessary to discuss, as they relate to matters concerning which there is no controversy. The remainder and the answers thereto are as follows:

Question No.7: Did Amelia Victoria Plotner, in her application for insurance to the defendant and in consideration therefor, expressly declare that all of her statements and answers as written or printed therein, and also in part 2 of such application, were full, complete, and true, whether written by her own hand or not? Answer: Yes.

Question No. 8: Did Amelia Victoria Plotner expressly agree that every such statement and answer is and was material to such risk? Answer: Yes.

Question No. 9: Were the following questions propounded to Amelia Victoria Plotner by the medical examiner and the following answers given thereto in said application? “Q. 7. Name all causes for which you