might be made in April and no symptoms discovered, and later the symptoms might be found in June; that chronic tuberculosis has a usual run of several years before producing death. He says that in his judgment deceased was afflicted with tuberculosis or consumption on May 5, 1914, and immediately preceding that day.

At this point we may as well refer to the rebuttal testimony of Dr. Peck in regard to a conversation with him and the plaintiff, who testified to the conversation. The plaintiff testified that the day before deceased went to Oakdale witness went with her to see Dr. Peck, and says:

A witness testifies that he was the medi- | Witness gives other symptoms and tests cal attendant of deceased for about nine made by him, and says she did not have the months during which time she was confined acute, rapidly developing type, but that she to the house and prevented from attending had chronic tuberculosis. He says, howto business for about seven and one-half ever, that a careful physical examination months; that he treated her for pulmonary tuberculosis which was the remote cause of her death; that the history and symptoms of the disease during its progress were typical. Another medical witness testified that he had known deceased two years; had not treated her for any ailment prior to her last illness; attended her during her last illness for tuberculosis of the lungs; that the remote cause of death was tuberculosis. Another medical witness testified that he met deceased at the sanatorium at Oakdale, where he was superintendent, and that this was June 25, 1914. Witness identified an exhibit as the record of deceased and answers to questions put to her by an attendant; that Dr. Peck was the sanatorium examiner in June, 1914; identified another exhibit as Dr. Peck's report on deceased to the sanatorium. Dr. Peck testified that he examined deceased June 17, 1914, for admission to the sanatorium; that she was referred to him by Dr. Page, who brought her; that the exhibit identified by the prior witness was the record made by him; that witness examined her June 8, 1914; he found that she then had pulmonary tuberculosis; that she complained of tiring easily, was nervous, poor appetite and digestion, restless sleep, weak, afternoon fever, loss of weight, dry cough, shortness of breath, and so forth; that he diagnosed her case, basing his judgment of her symptoms and the history given by her, as pulmonary tuberculosis, and expressed his opinion that she had had it for years; says she told him that she had a similar attack the previous year, and had gone to Nebraska for a vacation; that deceased then told him she had a brother who died from tuberculosis three years previous.

As before shown, deceased stated in her application that her brother had died of lead poisoning, and it should be said here that she had been informed prior to her giving such answer that a doctor had pronounced his disease lead poisoning. But that thereafter, and before she told Dr. Peck that her brother had died of tuberculosis, she had been so informed.

Continuing the testimony of Dr. Peck, he says further that deceased told him in the conversation before mentioned that she had had a long drawn out attack of typhoid fever five years previous. Witness says he found definite physical signs of tuberculosis in the lungs, and diagnosed her case as tuberculosis on June 8th; that she had been tubercular for years. He says, however, that the condition mentioned was not necessarily present all the time in the lungs; that if Dr. Mountain (whose testimony will be referred to later) found her normal on April

"I asked him what was the matter. He said it was lung trouble. I said, 'Doctor, how did for the Yeoman Lodge, and she passed an examthat come? She was examined just in April ination of good health then.' 'Well,' he says, her lungs-she was not far enough advanced, not even two weeks ago, that you could tell,' her,' and he says, 'it is hard to tell now, he says that there was anything wrong with for it is just the very starting of it.'"

* *

In rebuttal Dr. Peck was asked if he so stated to Mrs. Murray, and answered:

"A. I had some conversation with her; yes, sir. Q. Will you tell the jury whether or not you made those statements to Mrs. Murray? A. her. Q. Did you tell her the substance of that? I cannot recall the words used in talking to A. Yes, sir."

We have been compelled to go to the transcript as to this testimony because of a dispute between counsel, but find that appellee's additional abstract is substantially correct.

Dr. Wertz, testifying for defendant, states that he treated deceased about April 24, 1914, for catarrhal inflammation of the membranes of the nose and pharynx; that she consulted him at that time for headache, recurrent nosebleed, for two months following a cold; said she had been afflicted in this way for two months.

Dr. Page says that he made a physical examination of deceased in December, 1911, and recalls that she was run-down and took a vacation; saw her again in June, 1914, and diagnosed her trouble as being tubercular, and referred her to Dr. Peck; she had a cough, and an examination of the lungs caused him to decide she had tuberculosis; saw her again June 16, 1914; her case was further advanced; saw her again in July, 1914; case progressing more rapidly than in June; told her in June what her trouble was. Dr. Leir says he treated the brother of deceased in the fall of 1911, and that he died in September; the cause of his death was tuberculosis of the lungs; lead poisoning runs a different course from tuberculosis; and describes the difference. Certificate of death recites that the brother died of tuberculosis of the lungs.

Dr. Watts, dentist, testified that deceased, her relatives live; she went August 1st; worked in his office from two to four years; came back Thanksgiving time; stayed two put in lots of time; was there early in the weeks and returned to Nebraska; witness morning; worked frequently from 8 to 6, went out and brought her home in February, sometimes later; always ready to attend 1915; deceased was greatly improved at to business; was well; did not recall that Thanksgiving time (1914); had increased in she was out of the office for six weeks or weight; gained 24 pounds while in Nebraska two months at any time that he was home, on a ranch; felt better; she went to Oakand while he was away in the summer she dale June 24, 1914, and stayed nearly three worked just the same; heard no complaints weeks; she went to Yeomen dance in Deof headache prior to April, 1914. cember, 1914; was feeling fine. The father gave similar testimony, but not so much in detail.

Dr. Cornell, a dentist in Dr. Watts' office two years, beginning May 1, 1913, saw deceased every day; she was usually the first one of the girls to reach the office in the morning; describes her duties and says she was on her feet practically all the time, and was there from about 8 in the morning to 6 or later in the evening; did not remember that she lost any time aside from the vacation she took; he took no vacation and was there every day; knew of her consulting Dr. Peck in June, 1914; noticed a change in her physical condition about a month before that time; never knew of her being ill at all up to the time of her leaving the office; about a month prior to June 8, 1914, she began to gradually lose strength; appeared weary; needed a vacation.

Another witness testified that he was acquainted with deceased; never knew of her being sick until her last sickness; when he saw her she did not look or act sick.

Such in brief and in a general way is the testimony. There may be some other circumstances to be referred to in the discussion of the different points.

1. Appellant contends that the statements by deceased in the application should be construed as strict warranties; while appellee says that they should be construed as representations. Counsel for appellant have been very industrious in the citation of authorities on this proposition, and have very carefully presented their theory on that point, as has counsel for appellee. This is the point most strongly relied upon by appellant for reversal. He urges strenuously that, if her statements are warranties, then defendant's motion for a directed verdict should have been sustained, and that the case should be reversed because it was overruled. Some other questions, such as the admission of testimony, depend upon the determination of this point. There is a question of practice that should be first noticed. We have stated that both plaintiff and defendant filed motions for a directed verdict, the defendant's being overruled and plaintiff's sustained. Appellant has assigned error that there was a conflict in the testimony at some points, and that, after the court had determined that defendant's motion for a directed verdict was not well taken, the case should have been submitted to the jury, and that the court erred in sus

Plaintiff, the mother of deceased, testified that deceased worked every day long hours; that she did not complain in the two weeks preceding June 8, 1914, of being tired and nervous, nor of having any fever, or being restless at night, nor that she was losing weight or had any 'headache; never noticed that she had any cough, she never complained of any cough; that deceased lived at home; was in good health when she joined the Yeomen; worked right up to the time she went to Oakdale, except a week; first noticed her health failing along towards June; wanted her to take a vacation; never knew her to be sick except for little complaints; several years before she joined the Yeomen she had an accident and complained of a pain in her side; thought her ribs were broken; when she had the trouble with her ribs she treated herself; she made a very prompt recovery, and did not have Dr. Foulk during this sickness; knew of no one treat-taining plaintiff's motion for a verdict. ing her in July of 1909; she was living at home at that time; never knew deceased had pleurisy; deceased never had anything like typhoid fever; went with deceased to see Dr. Peck the day before she went to Oakdale; did not know deceased was coming home tired for two months prior to June 17, 1914, nor that she had had a similar attack the year before; she was away six or seven days on her vacation in 1913; deceased did not complain in the few weeks preceding June 8, 1914; did not know she had lost weight; she did not complain of headaches; never noticed her having any cough; deceased went to Nebraska after she came home from Oakdale; the same place to

There is but little argument by appellant on this point except in the reply argument. We are inclined to the view that there was some conflict in the testimony, and perhaps enough to require submission of the case to the jury as to some questions were it not for state of the record. In some jurisdictions it is the rule that, where both parties make a motion for a directed verdict, all questions become mixed questions of law and fact for the court, and that there is no question for the jury. The general rule in Iowa seems to be the other way, but with some exceptions, as where both sides of the case either expressly or impliedly consent to a disposition of the case by the court.

in the Iowa cases holding that the court may In the latter part of the above statement properly dispose of the case without submit- counsel for appellant seems to concede that ting it to the jury. The trial court was of there was a failure of defendant to establish opinion that the statements of deceased were bad faith, knowledge, etc. Counsel concedes, not strict warranties. It appears that in however, in the reply argument that the burruling on these motions the trial court saiu, den of establishing the various defenses alsubstantially, that the two motions presented leged by the defendant clearly rests upon it. a serious legal question as to the knowledge | Again, counsel say that defendant's motion of deceased in regard to the representations for a directed verdict is based upon the propand their alleged falsity, and that there was osition that one or more of its defenses are some doubt in his mind whether, if the de-established as a matter of law, and in such fendant had not made its motion, but that he would have submitted the question to the jury to the end that the question which he thought about the only serious question of fact in the case might have been determined by the jury, and said:

"But if I am wrong about this matter, in view of the motion which has been made, and the question is submitted to the Supreme Court, the appellate court can make final disposition of it." The court then went on to say that he did not believe that deceased, to her knowledge, was affected with tuberculosis at the time she signed her application, or at the time of the delivery of her certificate, and that if her brother died of tuberculosis of the lungs she did not know it at the time of taking out her insurance with the defendant associa

tion. The court then said:

"I think these questions are all squarely presented, so that either party now can have these reviewed by the Supreme Court just as well as if I should submit it to the jury upon instructions.'

case nothing was left for the court to do but direct a verdict for the defendant, and they cite here Sanderson v. Railway, 167 Iowa, 90, 149 N. W. at 190, holding that the facts about which there is controversy must be submitted to and determined by the jury, when the evidence of the existence or nonexistence of the facts is such that honest minds, searching for the truth, fairly and dispassionately weighing the evidence, might differ as to the existence or nonexistence of the ultimate fact sought to be established by the evidence. This, of course, is the ordinary rule, but the question here is whether under this record, the defendant did not consent to a disposition of the case by the court, or waive the question of submitting it to the jury, and as to this proposition appellant cites German Savings Bank v. Bates Co., 111 Iowa, 432, 82 N. W. 1005-1007. But in that case it appears, and the court so says, that the parties never agreed to waive a jury and to submit the issue of fact to the Thereupon the court overruled the motion court, and that neither was willing as of the defendant, and sustained the motion against the motion of the other to waive a of the plaintiff for a directed verdict for the jury, and to submit this difference to the sum of $755. After the court had made the court, but each was impliedly asking as statements that, if he was wrong about the against the other that this difference, which matter, and the question is submitted to the it was the province of the jury to determine, Supreme Court, the appellate court can make should be submitted to the jury, so that there final disposition of it, and that the questions was nothing in that case except the two mocould be reviewed by the Supreme Court just tions, one against the other, and this did not as well as if the case was submitted to the of itself show that the parties consented jury upon instructions, the defendant made that the trial court should pass upon all no objection to the disposition of the case in questions. But there is more than that in this manner, and made no request that the the instant case, and we think under this case should be submitted to the jury. Fur- record that this case is ruled at this point thermore, in this court counsel for appellant by Gray v. Immigration Co., 127 Iowa, 560argues strenuously, and, as said, makes it his 562, 103 N. W. 792; Wells v. Telegraph Co., principal ground for reversal, that a proper | 144 Iowa, 605–624, 123 N. W. 371, 24 L. R. A. construction of the certificate and the application and the statements of deceased is that they are warranties, and that under the evidence there should have been a directed verdict for the defendant. At one place in the argument appellant says:

"The sole question, as I conceive it, is: Did the defendant establish any or all of its defenses by such evidence as required the court under the Iowa decisions to direct verdict in its behalf? In considering that question the trial court was manifestly in error, when he injected the element of knowledge and bad faith, and laid the proof of these upon the defendant as a condition required before its defense could be established, and his opinion in directing verdict shows that the failure of the defendant to establish bad faith, knowledge, etc., on the part of Jessie Murray was the reason underlying his action in that respect."

(N. S.) 1045, 138 Am. St. Rep. 317, and cases; Battis v. McCord, 70 Iowa, 46, 30 N. W. 11.

It is very clear to us from the evidence before set out that there was abundant evidence to sustain a verdict for plaintiff, had the case been submitted to the jury, and it had so found. Appellee does not claim that, if there is not sufficient evidence to support a verdict of the jury in her favor, the case should not be reversed on appeal. Appellee contends that this and nothing more was the holding in First National Bank v. Milling Co., 103 Iowa, 518-524, 72 N. W. 6S9, cited by appellant. It is our conclusion that there was no error at this point.

2. The next question is whether the statements of deceased should be considered as

strict warranties, as contended by appellant, | Mountain. Though not cited by either party, or representations, as appellee contends. The principal contention by appellant as to her statements at this point is as to whether deceased had tuberculosis or consumption at the time of her statements, or when her certificate became effective, and there is some argument on the point, considering her statements as representation, whether she had knowledge thereof and acted in bad faith. Some other alleged false statements are said to have been made which constitutes a breach. But as to these last plaintiff's evidence was such, some of it direct and some of it circumstantial, that the trial court was justified in finding that they were minor complaints such as cold and the like, and that she had not had typhoid fever and some of the other things relied on.

see, also, Code, § 1812, Weimer v. Ass'n, 108 Iowa, 451, 79 N. W. 123, and Brown v. Modern Woodmen, 115 Iowa, 450, 88 N. W. 965, as bearing on this point. It has been held in some of our prior cases that this section does not apply to mutual benefit fraternal orders, such as this. Some members of the court think otherwise, but the point is not raised in this case or determined. Dr. Peck, testifying for defendant, stated that, if Dr. Mountain found deceased in the condition as stated in this confidential report, then, on that date, there was no tuberculosis there, but that it developed thereafter and before June 8th. If Dr. Mountain from the character of the examination made by him was unable to discover any symptoms of tuberculosis or any other disease, surely deceased, inexpe[2, 3] The evidence has already been set rienced in such matters, could not be expectout at considerable length, and, without re-ed to know of its presence, and much less peating it here, there is ample evidence to sustain the finding of the trial court that, although deceased died of tuberculosis of the lungs, she did not have that disease on April 15, or May 5, 1914. And the evidence is abundantly sufficient to show that, even though she had the disease prior to these days, she did not know it, and did not act in bad faith in making her statements as to her physical condition in that regard.

[4] In this connection it may be remarked that the confidential report of defendant's medical examiner, Dr. Mountain, before set out, is significant. It will be noted that just before the certificate, under the title "remarks," a space for answer is left blank, indicating, it would seem, that the examiner found nothing to indicate that the applicant was not in good physical condition. From this, and from the fact of his examination and the making of the certificate, as said in New York Life Ins. Co. v. Moats, 207 Fed. 481-485, 125 C. C. A. 143, 147 (1913):

"It may be inferred that the medical examiner, after having made a careful examination of the applicant, as a representative of the company skilled in the detection of disorder, found no sign or evidence of derangement of the brain or nervous system; that nothing in the appearance, speech, or manner of the applicant gave to the medical examiner any impression not before expressed in his report, or which might influence the home office in its estimate of the risk. In other words, he had, as an expert representative of the company, and as required by his instructions, given in his report a pen picture of the applicant as he presented himself to the examiner, and this pen picture was favorable to the applicant as an insurable risk.

"It was plainly upon the examination and report of this skilled expert of the company that the character of the risk was finally and mainly determined by the company, and not wholly upon the answers and representations of the applicant himself; and particularly must this be so where the inquiry relates to the brain or nervous system of the applicant wherein a physician and skilled examiner and observer is often a better judge of the physical and mental condition of the applicant than the applicant himself."

This language is applicable to the instant case, and, as there said, the defendant relied,

would a court or jury be justified in finding that she did not act in good faith in stating her condition. We do not overlook the fact that there is other evidence on behalf of defendant that the deceased had the disease prior to the dates mentioned. But under the entire record the finding of the trial court is sustained.

3. Appellant contends, and cites a large number of authorities to the proposition, that where a party to a contract binds himself by the strict truth of his statements or answers in such contract, and warrants the truth of his said statements and answers, the only question, where breach of warranty is alleged as a defense, in an action on such contract, is as to the truth of the answers and statements so made and warranted. And appellant says that the element of knowledge is excluded where a contract of warranty is under consideration. Much of appellant's argument at this point is based upon the assumption that the statements and answers of deceased in the instant case were and are warranties. We do not understand appellee to dispute many of these propositions, but, as said, contend that they should be treated as representations, and that, this being so, the question as to the knowledge of deceased is material.

[5] In view of the length of the opinion caused by setting out the evidence at some length, we shall not attempt to review all or any considerable number of the cases. It would be an endless task to do so. Furthermore, we think the rule is well settled in this jurisdiction, so that we shall refer to a few of the cases and content ourselves with the citation of others.

In Owen v. Insurance Co., 74 N. J. Law, 770, 67 Atl. 25, 122 Am. St. Rep. 413, the court said:

"The declaration in paragraph 2 of the appli cation to the effect that the applicant had never had disease of the heart, an obscure disease, concerning which the insurer should know that the applicant could not have certain knowledge, saving as he might be told by a physician or