Page:North Dakota Reports (vol. 48).pdf/325

 she understood it. In these circumstances his testimony, to a considerable extent, may be regarded as opinion evidence. It was not by any means absolutely conclusive. It was some evidence as to the state of her health at that time, and the weight of it, as of all the evidence, was for the jury.

We are of the opinion it was proper to permit the introduction of evidence by lay witnesses as to the apparent condition of her health at the time of making the application, and for a reasonable time prior and subsequent thereto. Rondinella v. Metropolitan Life Ins. Co., 24 Pa. Super. Ct. 293; 7 Ency. of Evidence, 527, note 76, First Supplement; Baldi v. Metropolitan Ins. Co., 18 Pa. Super. Ct. 599; 5 Ency. of Evidence, 713; Keininghaus v. Merchants’ Life Association, 116 Iowa, 364, 89 N. W. 1113; Stone v. Moore, 83 Iowa, 186, 49 N. W. 76; Tierney v. Minneapolis & St. Louis Railway Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Federal Betterment Co. v. Reeves, 77 Kan. 111, 93 Pac. 627,15 Ann. Cas. 796; Perry v. Mutual Life Ins. Co., 143 Mich. 290, 106 N. W. 860; John- son v. Union Pacific Railroad Co., 35 Utah, 285, 100 Pac. 390; Hubbard v. Mutual Reserve Fund Life Association, 100 Fed. 719, 40 C. C. A. 665.

We have examined other objections by defendant to the introduction of certain evidence, and its objections to rulings of the court on certain evidentiary matters complained of, and find no reversible error therein.

We are next to consider defendant’s claim that the insured made false answers to certain questions contained in the application, with the intent to mislead, deceive, and defraud it, by inducing it to issue the policy, which it would not have done had true answers been given to the questions. In the application, insured was requested to name all causes for which she had consulted a physician in the last 10 years. See question 9 of the special verdict supra. The question required her to state the nature of the illness, the date, duration, and remaining effects of it, if any, and the address of the physician who attended her on those occasions, if any. Her answer to this was appendicitis; that the duration of the sickness was 10 days; that she had a good recovery; and that she was attended by Dr. Sweitzer, of St. Paul.

It will be noticed from what has above been stated that she did consult Dr. Oliver on June 28th, and that in the following month, on July 18, 1919, she signed the application.

Section 6501, C. L., provides:

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