The application for insurance was made 5 January, 1897; the policy was delivered to the assured 11 January, 1897, and he died 16 March, 1897. The defendant relies upon a clause on the back of the policy — "This policy shall not become operative so as to bind the association until the first annual premium is paid and the policy is actually delivered to the member herein named during his life and good health." The jury responded "No" in response to the fourth issue — "Did insured make false representations in his application and examination?" and there was no exception. There was no evidence of a change of health between the application, 5 January and the delivery of the policy and payment of premium, 11 January. On the contrary the evidence of defendant's witnesses concurred with plaintiff's, that the assured was at work as usual in his business of hauling logs up to eight or ten days of his death, and the attending physician says he died of gastralgia, a disease, which, from its nature, could not have possessed him on 11 January, at the delivery of the policy, if he worked hauling logs for nearly two months thereafter. *Page 73
The jury find, "No" as to the sixth issue — "Was said policy delivered to W. T. Temple during his lifetime and while in good health?" There being not a scintilla of evidence as to change of health between the application on 5 January, when the response to the fourth issue finds that the applicant's representations as to his health were (69) true, and the delivery of the policy on 11 January, these findings are clearly inconsistent and contradictory. The brevity of time — six days — warranted no presumption of change of health, and upon identically the same evidence the jury have made contradictory findings. The court should have granted the plaintiff's motion to set aside the verdict upon that ground.
NEW TRIAL.