Page:North Dakota Reports (vol. 48).pdf/541

 PERPETUA FLECKENSTEIN, Respondent, v. PROVIDENT INSURANCE COMPANY, Appellant.

Insurance—in an action on a life insurance policy; question of delivery held one for jury.

1. In an action upon a life insurance policy where the insured at the time of the application directed the soliciting agent to send the policy to be issued to a banker with whom the insured did business and the application contained a memorandum to send the policy to such banker, and, where the Insurance Company, acting upon the application, issued the Policy and sent the same to such banker, who was its agent, with instructions, uncommunicated to the insured, to deliver only upon being satisfied after personal investigation concerning the good health of the insured, it is held, upon the record, that the question of delivery was one for the jury.

Insurance—question as to insured’s health on delivery of policy held one for the jury.

2. Where an insurance policy is delivered pursuant to a stipulation in the application that it shall mot take effect unless delivered to and received by the insured while in good health, and where the insured, a married man aged 24 years, was in apparent perfect health when the application was signed, Oct. 21st, and the policy issued, Oct. 30th, and so continued until the evening of Nov. 8th, the day when the policy was delivered, excepting that he complained of a headache in the evening of Nov. 6th and during the day of Nov. 7th, and where during the evening of Nov. 8th the insured stated to have a fever, on Nov. 9th had a high fever and was then partially confined in bed, and on the afternoon of Nov. 10th died through “broncho-pneumonia” following an attack of “influenza,” and where the entire evidence concerning the good health of the insured subsequent to the issuance of the policy and until his death is dependent solely upon lay testimony unaided by that of medical science, it is held that the question of the good health of the insured, when the policy was delivered, was for the jury.

Action in District Court, Hettinger County, Hanley, J.

From a judgment in favor of the plaintiff and an order denying a new trial the defendant has appealed.