ON MOTION FOR REHEARING. The opinion, in discussing the good faith of young Golding, the insured, in answering questions propounded to him by Dr. Zoglin the Camp *Page 194 physician, and in referring to instruction B in connection therewith, may perhaps convey the impression that the instruction merely told the jury that if young Golding acted in good faith, then the answers, even though not full and correct, constituted no defense. Of course, this was not a complete characterization of the instruction; and we had no intention of announcing a rule that if an applicant made incorrect answers, nevertheless, if he did so in good faith, they could not be depended upon to avoid the insurance as broken warranties. The instruction, in effect, told the jury that if insured made a full and frank disclosure to defendant's Camp Physician of all the matters claimed to have been misrepresented, and that the Camp Physician thereupon filled out the application in his own way and wrote down only so much of the information given him as he deemed important or essential,and that young Golding acted in good faith and without intent to deceive, then it was no defense that the statements and answers written down by the Camp Physician were not full and correct.
The good faith of young Golding was mentioned in the opinion, not as the determinative factor of whether incorrect or incomplete answers could be relied upon as a defense, but merely to show that there was no element of fraud on the part of young Golding or any attempt to deceive the Camp Physician. The idea being in our mind that, even if the Camp Physician did act in such way as to waive certain matters, yet if young Golding also had in his mind an intent to deceive, and carried it out even in the slightest degree, his wrongful procedure would nevertheless permeate and taint his insurance, notwithstanding the Camp Physician's waiver.
We have carefully considered the motion for rehearing, but are of the opinion it should be overruled. It is so ordered. All concur. *Page 195