On Petition for Rehearing.
Morris, C. J.*461 3.
*460In her petition for a rehearing, appellee claims the court erred in “holding that forfeitures were favored by the court in favor of the insurer as against the insured.” The opinion is chargeable with no such criti*461eism. What it does declare on that subject is that no question of forfeiture was involved in the issues. The death occurred within a year of the issuing of the certificate which expressly provided against liability if death ensued from tuberculosis within that time. The second paragraph of answer averred that tuberculosis was the cause of the death. It is correctly held that there never was any insurance against death by that disease within the year, and consequently appellee never had a right of action, if the death was so caused. Knights, etc., Ins. Co. v. Shoaf (1906), 166 Ind. 367, 370, 77 N. E. 738. A right must exist before it can be forfeited. To hold otherwise would involve an absurdity.
6.
It is further alleged that “the court erred in * * * disregarding the well-settled rule that courts will not review instructions given in the case, unless the evidenee is in the record.” Counsel cite Weir Plow Co. v. Wamsley (1887), 110 Ind. 242, 11 N. E. 232. That ease declares the correct rule, viz., that in the absence of the evidence, instructions will not be reviewed if they can be held correct on “any state of the evidence which might properly have been before the jury.” The original opinion is not in conflict with such rule. There could have been no evidence here, “properly” before the jury, involving the question of appellant’s duty to return premiums, because there was no issue that rendered such evidence competent.
*462 8.
*461In Knights, etc., Ins. Co. v. Shoaf, supra, the court, after holding that the trial court erred in overruling a demurrer to a reply, examined the evidence to see if the said error otherwise prejudicial might be held harmless. Counsel for appellee cite the above ease, and reach the erroneous conclusion that it holds that in the absence of the evidence from the record that this court may not hold the erroneous ruling harmful. It is quite true that an erroneous instruc*462tion may be rendered harmless by the evidence, which would be the ease here if the evidence were in the record, and showed that there was' no evidence given that the decedent died of tuberculosis. But appellant was under no obligation to incorporate in its transcript a bill of exceptions containing the evidence. It has brought up enough of the record to show prejudicial error. This requires a mandate of reversal, unless, from a consideration of the record before us, such error is shown harmless. A similar question was presented in Lynch v. Bates (1894), 139 Ind. 206, 214, 38 N. E. 806, where there was an erroneous instruction. The court said: “Here there was no finding of the facts, by answers to interrogatories * * *, nor is the evidence in the record, so that we are unable to say whether the judgment is right upon the merits or not.” Had appellee, here, seen fit to have the evidence incorporated in the record, for our consideration, it would then have been the duty of this court to review it for the purpose of ascertaining thereby whether the error in the instruction was not cured. Kesler v. Myers (1873), 41 Ind. 543, 555. As the record stands, we are unable to say whether the jury found that the decedent died of tuberculosis. It may have found that he did, and found appellant liable notwithstanding, because of failure to return premiums paid, as it was so instructed by the court. If the trial court’s error could have been met and overcome by a consideration of another part of the record, not embraced in the transcript, it was appellee’s duty, not appellant’s, to take the proper steps to enable this court to examine the entire record. Appellee’s counsel further contend that the effect of the original opinion is to overrule Commercial Life Ins. Co. v. Schroyer (1911), 176 Ind. 654, 95 N. E. 1004, and other like cases. We are unable to take counsel seriously in this claim, except on the assumption that they have failed to consider carefully such original opinion. In either event, we regard further *463consideration of the suggestion unnecessary. Petition overruled.
Note. — Reported in 103 N. E. 345; 104 N. E. 641. Reported and annotated in 50 L. R. A. (N. S.) 1006. As to mutual benefit associations and whether they are to be regarded as insurance companies, see 19 Am. St. 781. On the duty of insured to negative death or accident from excepted cause, see 4 L. R. A. (N. S.) 636.