Defendant petitions for a rehearing. The principal ground is that this court erroneously considered that the defense of a breach of the continuing representation of insurability of the insured from the date of the application for reinstatement to the moment of its acceptance was not pleaded nor litigated by consent. We still think it was not pleaded, for the averments in the answer upon the subject of representations as to health are obviously directed to show that the insured made untruthful statements in his application for reinstatement. But we have concluded that the opinion is wrong in giving as a reason why defendant was not entitled to a directed verdict that the defense of this continuing representation was neither pleaded nor litigated by consent. And the reason is now withdrawn from both the opinion and the syllabus. If under established principles of law the evidence shows defendant to be entitled to a directed verdict, it was error to deny its motion therefor even though the particular defense established by such evidence was neither pleaded nor litigated by consent. For the purpose of the motion, all the evidence admitted must be considered as properly received. Of course, denial of such motion cannot present for review in this court errors in the charge or omission to submit a fact issue presented by the evidence. If there was in the evidence an issue of fact as to the fraud of the insured in not informing defendant of the mastoidectomy, the court rightly denied defendant a directed verdict. *Page 217
As pointed out in the opinion filed, defendant had issued its policy on a medical examination to the insured in 1931, which contained a provision for reinstatement in case of a default in the payment of a premium. For such default the policy lapsed on May 28, 1932. On June 15, 1932, on blanks prepared and presented by defendant, the insured applied for reinstatement. Defendant only required as a condition for reinstatement true answers to the questions referred to in the opinion and the payment of the premium defaulted, with interest. The jury has found that there was no false answer to any question material to the risk when the application was made. There remains only the question whether there was such a material change in the insured's health after the application was made and before its acceptance that failure to inform defendant thereof constitutes, as a matter of law, a fraud upon it. Two days after the application was made a change did occur, and the assured then knew that he had mastoid infection and submitted to mastoidectomy. There are undoubtedly maladies so fatal and operations so dangerous that the ordinary person would understand that failure to report the same to the insurer before it accepts the risk would be a fraud; for instance, knowledge of internal cancer or operations for brain tumors. It will hardly do to say that every operation is of such a nature that it would void an insurance contract issued in ignorance thereof. Extracting a tooth may be called an operation. It may cause fatal blood poisoning. We know fatal infection may result from squeezing a pimple or from a scratch of the skin, but no one would claim that an application for reinstatement under the conditions defendant imposed would require any action of the insured until the infection had so advanced that the applicant knew the condition to be serious. In every insurance contract there is a hidden risk. An applicant for insurance may have a fatal malady of which he is ignorant as well as the insurer's medical experts after a careful examination of the risk. As against such unknown conditions, surely the insurer may not avoid the insurance unless there is an express warranty of good health at the time of the acceptance of the risk. Here the conditions were out of the ordinary. The usual pain and temperature *Page 218 were absent. The doctors did not operate until an X-ray disclosed necrosed bone. The insured made light of the operation. It appeared a success. He was discharged from the hospital in five days. While Dr. Mork testified that mastoiditis is a serious ailment, he also says that mastoidectomy is a frequent operation, without giving what the usual results are. The autopsy revealed that the cause of death was abscesses of the brain. It also showed that the mastoid operated on had healed or was in the process of healing. Dr. Curtin could not say how long the abscesses had existed; they might have been formed after the operation; he thought the operation caused them, although there was no infected tissue between them and the operated mastoid. He stated: "As a rule, with mastoids you don't get a brain complication, but then you do every now and then, so really it isn't an uncommon thing." Without further analysis of the evidence, we think there were presented facts from which a jury could draw the conclusion that the failure to inform the defendant of the mastoidectomy was not a fraud upon it. Its wording of the application is such that the insured could well rest on the assurance that if the three questions were answered truly to his best knowledge and belief, and the premium in default paid, reinstatement took effect automatically. Mutual B. L. Ins. Co. v. Higginbotham,95 U.S. 380, 24 L. ed. 499; Stipcich v. Metropolitan L. Ins. Co.277 U.S. 311, 48 S.Ct. 512, 72 L. ed. 895, cited in the opinion, seem to support our conclusion that there was a fact question for the jury. Harnischfeger Sales Corp. v. National L. Ins. Co. 195 Minn. 31, 261 N.W. 580, and other cases cited by defendant in the petition for reargument do not help to solve the question here involved.
Rehearing denied. *Page 219