Page:North Dakota Reports (vol. 48).pdf/551

 sured in good health at the time the policy was delivered? The jury in this case, in effect, answered both questions in the affirmative. It is the contention of the defendant insurance company that the evidence is - insufficient to justify these answers; and it. is asserted that both questions must be answered in the negative as a matter of law.

The evidence is by no means conclusive, but a careful consideration thereof leads me to the conclusion that it cannot be said, as a matter of law, that negative answers should have been made to these questions. In other words, I am of the opinion that there is evidence from which reasonable mer might reach the conclusions which the jury, in this case, did reach.

, C. J. (concurring). The principles of law announced in the opinion of Mr. Justice Bronson in this case are largely similar and to the same effect as those announced by this Court in the case of Donahue v. Mutual Life Insurance Co., of New York, 37 N. D. 203, 164 N. W. 50, L. R. A. 1918A, 300.

, J. (dissenting). The Insurance Company appeals from a judgment against it for $2,000 and interest and costs, and from an order denying a motion for a new trial. The judgment is on a special verdict and on general findings of fact by the court. The defense is that the insurance contract or policy was never delivered to the deceased and that he never paid any premium. The answer avers and the fact is, that the deceased made to the Company a regular written application for insurance and on November 6th, 1918, the application was considered and approved by the Company and a policy of insurance was mailed to Mr. Bigham, the agent of the Company. On November 8th, 1918, the policy of insurance was received by the agent with special instructions in regard to the delivery, and on November 10th, 1918, and before delivery, the deceased died of influenza. On November 8th, 1918, the agent of the Company received the insurance contract with a letter as follows:

“Chas. E. Bigham, Agent, Haynes, N. Dak.

“Dear Sir—We hand you herewith the above policy which you are authorized to deliver only upon the condition that after personal investigation you have satisfied yourself that the applicant is not suffering