Life Insurance Co. v. Warren.

Jordan v. Picket, 78 Ala., 331; Carvil v. Jacks, 43 Ark., 454; s. c. lb., 439; Hale v. Philbrick, 47 Iowa, 217, Md., 439; Winter v. Bandel, 30 Ark., 362; 1 Bigelow on Frauds, 543, 544, 535, 537.

There was no reason why the court or jury should make a new contract for these parties, by saying that a fraud which lay at the very foundation of the contract was immaterial.

Where the charge of the court to the jury is calculated to confuse and mislead the jury, as to the law of the case, there is error for which a judgment may be reversed. Ins. Co. v. Ins. Co., 5 Ohio St., 450; White v. Thomas, 12 Ohio St., 312; Railway Co. v. Wetmore, 19 Ohio St., 110; Insurance Co. v. Reed, 33 Ohio St., 283; Railway Co. v. Picksley, 24 Ohio St., 669.

F.M. Marriott and J. S. Jones & Sons, for defendant in error.

In the trial of the case before the court and jury below, there was no testimony offered which even tended to establish the defense, or to show that any answers made by George E. Warren were false, or if false, that they were willfully false or were fraudulently made, so as to bring them within section 3625 of the statutes.

But to escape this failure of proof, counsel for plaintiff in error "maintain that section 3625, Revised Statutes of Ohio, is violative, not only of the constitution of Ohio, but also of the constitution of the United States," and argue at great length to establish this contention.

In answer to this we might well content ourselves by citing the case of the National Life Insurance Co. v. Brobst, 56 Ohio St., 728. We need not go out of Ohio to find authority establishing the

Life Insurance Co. v. Warren.

right of the legislature to enact this and similar statutes. Smith v. Parsons, 1 Ohio, 239; Bank of Chillicothe v. Swayne et al., 8 Ohio, 283; Mansfield, C., and L. M., R. R. Co. v. Brown et al., 26 Ohio St., 224; Jewett v. Railway, 34 Ohio St., 607; Linderman v. Ingham, 36 Ohio St., 10; Bryan v. Insurance Co., 96 U. S., 627; Compton v. Railway Co., 45 Ohio St., 619; Wile v. The State, 46 Ohio St., 452; Cooley, Constitutional Limitations, 346; Insurance Co. v. Leslie, 47 Ohio St., 409; White v. Connecticut Mutual Life Ins. Co., 4 Dillon, Circuit Court Reports, 177; Moodie v. Insurance Co., 52 Ohio St., 23; Railway Co. v. Defiance, 52 Ohio St., 313; Norristown Tile Co. v. Hancock Ins. Co., 132 Pa., 385; New Era Life Ins. Co. v. E. N. Musser, 120 Pa., 384; Baxter v. The Brooklyn Life Ins. Co., 119 N. Y., 450.

In the construction and interpretation of a statute, the court will look to the cause and the occasion of the passage of the act; Endligh, sections 29, 252, 295, 444, 446.

The charge of the court was a most full, clear and accurate exposition of the law of the case. It was not misleading in any respect.

Upon the question of temporary ailments and their effect upon a warranty in a policy or application, we cite: Lawyer's Reports Annotated, vol. 22, p. 627, top of page; May on Insurance, second edition, section 202, p. 246-7; 10 American State Reports, p. 242, and especially the notes; 70 New York Court of Appeals, p. 72-3.

On the subject of the ten years' health clause in the application we cite May on Insurance, second edition, p. 247; also Dillon v. Home Life Insurance Co., 69 N. Y., 256; Brown v. Metropolitan Life Insurance Co., 65 Michigan, 306; 8 American State

Life Insurance Co. v. Warren.

Reports, 894; 97 Michigan, 513; 37 American State, 365.

It is a well settled rule that "the answers need not be broader than the question requires." 78 New York Court of Appeals, 568.

BY THE COURT:

In this state the subject matter of insurance is a franchise. State ex rel. v. Ackerman et al., 51 Ohio St., 163. And the state has a right to prescribe the terms and conditions upon which it grants such franchise, and the insurance company, having accepted the franchise with its terms and conditions, is bound thereby, and must accept the burdens with the benefits. Section 3625 was in force at the time this policy of insurance was issued, and therefore the legal effect is the same as if the section was copied into and made a part of the policy. The section is, therefore, a valid constitutional enactment. This section was held constitutional by this court in National Life Insurance Co. v. Brobst, 56 Ohio St., 728.

The case of Insurance Co. v. Pyle, 44 Ohio St., 19, was decided before this section was enacted, and, therefore, cannot control the matter. This section was passed for the purpose of abrogating the rule laid down in that case.

The court of common pleas, in the trial of the case, construed this section as requiring clear proof that the answers to the several questions by George E. Warren were willfully false, and were fraudulently made, and were material and induced the company to issue the policy, and that but for such answers the policy would not have been issued, and that the company and its agents had no knowledge of the falsity or fraud of such answers at and

Derby, Jr. v. Heath.

before the delivery of the policy. In this there was no error. Such are the provisions of this section of the statute, and the statute should be construed so as to effect the intention of the legislature in passing the same. It will be noticed that the insurance company fails to allege that the answers to the questions were material, and without such allegation the answer failed to state a ground of defense, as it matters not how false and how fraudulent such answers may be, if they are not material, they furnish no ground for defense to the company issuing the policy. There is, therefore, no error in the record and the

Judgment is affirmed.

DERBY, JR. v. HEATH.

Justice of peace-Authority to grant new trial-Section 6560 Revised Statutes.

The authority of a justice of the peace to grant a new trial is limited by the terms of section 6560, Revised Statutes, by which it is conferred; and an order made by him for that purpose more than five days after verdict and judgment is void.

(Decided October 11, 1898.)

ERROR to the Circuit Court of Erie county.

Plaintiff in error brought suit before a justice of the peace in Erie county against the defendant in error to recover the sum of three hundred dollars, the value of sheep and lambs alleged by him to have been converted by her to her own use. The transcript of the justice's docket shows the following entry on June 21, 1893: Court charged the jury and they were sent out, and after due consideration returned a verdict for plaintiff for

Derby, Jr. v. Heath.

ten dollars damage ($10.00). Thereupon it is considered by me that the plaintiff recover of the defendant, Eugenia Heath, judgment for ten dollars and costs of suit, taxed at forty-four dollars ($44.00).

The following entry also appears on the same date: "Plaintiff filed a motion to set the verdict aside and for a new trial. Motion to be heard June 28, 1893, at 4 P. M. Adjourned to that time."

June 28th, 4 P. M. "Parties appeared. Motion for new trial argued, which motion was on consideration by the court granted. Defendant moved to set aside order of court granting new trial, and the same was argued and court took until Monday, July 3, 1893, to decide the same. Court adjourned to July 3, 1893."

The following entry was made July 3, 1893: "Motion of defendant and order granting new trial was set aside. It is therefore considered by me on said third day of July, 1893, that the plaintiff recover of the defendant, Eugenia Heath, judgment for ten dollars and costs of suit taxed at forty-four dollars and six cents ($44.06). Plaintiff gave notice for appeal."

And on July 11, 1893, plaintiff gave an undertaking for appeal.

In the court of common pleas, a motion of the defendant, plaintiff's appeal was dismissed because no bond had been filed within the time required by statute. On error to the circuit court the judgment of the court of common pleas, dismissing the appeal, was affirmed. This is a petition in error to reverse both judgments.

Wickham, Guerin & French, for plaintiff in

error.