I concur in the results. The case of Chadwick v. BeneficialLife Ins. Co., 54 Utah 443, 181 P. 448, holds that the insurer must allege and prove "actual fraud" on part of the insured. Certainly evidence that the representations made by the insured were untrue and that he knew or should have known that they were untrue, would ordinarily be sufficient proof of the fact that they were fraudulent — that is that insured intended to deceive the insurer. But since actual fraud must be alleged and proved, evidence to rebut the conclusion which would ordinarily follow from proof of the above facts may be given. We have gone a long way in Utah in this regard. The testimony of Jones was that he read the questions to the deceased, and that the latter understood them and that it was concluded between them that the condition of deceased was not serious. Therefore it cannot be said that the answers given to questions (a), (b), (c), (d), (e), (f), (g), and (h) under the circumstances of the this case would not support a finding that deceased had not intended to deceive. That conclusion was for the fact finder under the evidence.
I do not think finding No. 9 was in proper form. The finding is not as to whether evidence was or was not offered as to a certain fact, but what the fact is. In this case the court was called on to find (1) whether plaintiff believed the answers of the insured; (2) whether it relied on them; (3) whether it was deceived by them; and (4) whether it would have refused to issue the policy if it had known the truth. No direct evidence is necessary to establish such facts. They are inferable from all the circumstances. Why *Page 316 would the insurer ask the questions if it did not believe the answers? What purpose would there be in asking them? And certainly where the questions are as to very material matters, matters on which the very decision of the company to accept or reject an application for a policy depends, it is obvious that it relied on them. What reason for asking the question except for the purpose of relying on the answers. If it relied on them it must have been deceived by them since it appears that it did not know the truth until after insured's death. And it is certainly inferable that such material questions were asked which if the truth had been known would have meant a rejection of the policy, that the company would have done what proper administration would demand that it do. To accept a policy from a man who suffered from pronounced organic heart disease necessitating a change of occupation within five years would be a gross infraction of duty to the other policyholders. It may be asked what purpose it would have served to put an officer, having the final decision to accept or reject a policy, on the stand to get him to give an answer, the truth of which could in the last analysis be checked only by the inferences deducible from the other testimony. Hence why not accept such inference in the first place. It would certainly be startling and totally unexepected if an officer of a company which brought a suit founded on the very basis that it had been deceived and had acted on the deception, would testify to the contrary. It would seem useless to put him on the stand to testify to facts which everyone has already inferred from the circumstances of the case and the very purpose of the questions and answers. Therefore I do not think the so-called findings in paragraph 9 of the Findings of fact would support a denial of judgment for the plaintiff.
I do not think the principles of Petty v. Clark, 102 Utah 186,129 P.2d 568, apply in this case on the question of whether defendant was entitled to a jury. This is not a case which comes under Sec. 104-23-5, Utah Code Annotated 1943. The counterclaim is upon the contract of insurance but the 5 fundamental question was: Was *Page 317 there a contract on which defendant could sue, or should it be set aside for fraud? The only questions which the jury was required to decide were in relation to the matter of fraud. If the contract was not voidable there was no question of defendant's right to recover. The company did not dispute the fact that policy had been written nor its amount nor contend that payment had not been made. Its sole attack on the policy was that it was fraudulently obtained and should be set aside. The issue here was purely equitable. In re Helin's Estate, 55 Utah 572,188 P. 633. I do not understand the case of Petty v. Clark, supra, to hold that every question of fact is triable by a jury. Where the only inquiry is as to facts which will enable the court to determine whether it will exercise or withhold its equitable powers, such questions of fact are equitable. Otherwise, a jury may be demanded in every case where there is a question of fact. Such was never the intent of the Clark case. Furthermore, it appears from a reading of Sec. 104-23-5, Utah Code Annotated 1943, that there are law actions in which a jury is not demandable, a matter which I think we have at times lost sight of.
In this case a jury was not demandable but that does not mean that if one was granted it is error which entitles the objecting party to a reversal. The court in this case treated the verdict of the jury as advisory. The answers of the jury to some of the special interrogatories were contrary to the evidence and contrary to the findings of the court. The court evidently found from the evidence independently of the jury. While no jury was demandable the court, permitting one, treated its verdict as advisory. Therefore, I think there is no reversible error in that regard.