Dissenting Opinion.
Rabb, J.I am unable to concur with the majority of the court in affirming the judgment of the court below in this cause.
The defense relied upon in this ease is a breach of warranty, and fraud in procuring the insurance. The insurance policy issued by the company to' decedent, was executed by the president and the secretary of the company, for and on behalf of the company. In making the contract they represented the company, and for the purposes of placing themselves in a position intelligently to contract with reference to the subject an application was required to be made by the insured, in which application certain interrogatories were propounded to the applicant, for the purpose of eliciting information important for the insurer to know in order that it might determine whether to accept the risk.
Among the interrogatories propounded to the assured in this case were the following: “ Q. Have you now, or have you ever had, any of the following diseases ? [naming a large number of diseases, among which were cancer and tumor, or any surgical operation]. A. No. Q. Give name and address of each physician consulted or who has prescribed for you during the past five years, and the dates and causes of *482consultation? A. S. J. Lisman, Oalctown, Indiana, consulted for colds, usually occurring during the winter months. ’ ’
The insured warranted that the answer to each one of these interrogatories was true, and it is averred in the answer that they were not true; that they were known not to be true by the assured; that they were made for the fraudulent purpose of inducing appellant to enter into the contract, and that appellant did not know of their falsity, and relying upon the answers as true issued the policy of insurance.
The evidence shows that in the summer of 1897 the assured underwent a slight surgical operation for a small abscess on his thumb; that in October, 1898, he consulted a physician and surgeon, named Moore, with reference to an enlarged testicle; that at that time the surgeon made an examination of the diseased organ, and advised the assured the trouble was of such a character as to, endanger his life, and that the testicle should be removed; afterward the physician, with the consent of the assured, called in another physician, Doctor Davenport, and the assured consulted with the two physicians with reference to the diseased organ; that they informed him that they believed the trouble to be caused by a malignant tumor, and advised its early removal; that, under their advice, he, in December, 1898, submitted to a surgical operation, by .which the diseased organ was removed, the two physicians, with the assistance of Doctor Somers, performing the operation; that in the month of April, 1899, he made application for insurance in appellant company, and answered to the interrogatories propounded to him in the application in the manner heretofore indicated.
The information called for by these interrogatories was of the most important character to the insurance company. Good faith and common honesty required that the assured, making the application for insurance upon his life, in answer to these interrogatories, should fairly and clearly in*483form the company of his condition, of the surgical operation, and give the names of the physicians who were consulted by him. It is scarcely to be believed that had the company been informed of this man’s condition, and that he had been afflicted with 'a malignant tumor, and that it had so recently been removed, it would have accepted the risk. Conceding that it knew he had undergone a surgical operation of some kind, it was entitled to know the names of the attending physicians, in order that it might fully inform itself as to the nature of that operation, and whether the proposed applicant was a proper subject for life insurance,
It is not pretended that the officers of the company, who were charged with the duty and responsibility of making t?e contract of insurance, had any knowledge whatever upon the subject, and this contract is sought to be upheld upon the testimony of Doctor Sprinkle, who testified that he was sitting in Doctor Johnson’s office, reading a newspaper while Doctor Johnson was propounding the interrogatories to the assured and writing the answers; that when the question was propounded: “Have you ever had a surgical operation,” the assured said: “Doctor, you know I have, and I suppose that it will bar me from life insurance, ’ ’ and Doctor Johnson told him he would fix that; and the witness got up and left while they were talking.
Doctor Johnson, the examining physician, testified that he -wrote the answers that appear in the application precisely as he was directed to write them by the insured, and that he had no knowledge that the insured had ever been subjected to a surgical operation, or that he was afflicted with any cancerous growth of any kind. There is no evidence that tends to show that Doctor Johnson had any opportunity to know about the performance of this grave surgical operation to which the assured had been subjected, except what might be inferred from the testimony of Doctor Sprinkle.
The insured was a school teacher. He had been engaged in the business of soliciting insurance, and the answer which *484Doctor Sprinkle says decedent gave to Doctor Johnson, with reference to the effect the surgical operation, that he knew he had undergone, would have upon the acceptance by the company of the risk, shows very clearly that he knew and understood that the company would not accept the risk if it knew the facts. If Doctor Johnson could be said to be an agent representing the company, he was not an agent authorized to contract for the company; a'nd for him to suppress from the company a fact within his knowledge in reference to the risk to be assumed by the company would be a fraud on his part against the company; and if the insured knew that he was thus suppressing such fact, he would be a party to the fraud. If the physician was acting in collusion with the insured, to procure from the company an insurance upon a life that was not an insurable risk, it would not be proper for the beneficiary of a contract so procured to say that the company was chargeable with notice of facts that were thus collusively suppressed by the agent and by the assured. If Doctor Johnson knew of a surgical operation which the assured had undergone, it is not made to appear what surgical operation it was. The evidence showed two surgical operations, one of such a trivial character that it could well be ignored; the other of such a grave character that if it had been known by the company the policy would not have been issued. Nor would a statement, such as Doctor Sprinkle says was made by the assured, while being examined with reference to‘ whether he had undergone a surgical operation, excuse him from answering the question as to whether he had been afflicted with a tumor. The evidence shows that he could not in good faith say that he did not know that he had been afflicted with such tumor. Good faith required him to answer that question, by stating what the fact was with reference to the tumor that had been removed from his body. Nor would such answer excuse the insured from giving a truthful answer to the interrogatory: 1 ‘ Give the name and address of each physician consulted, or *485who has prescribed for you during the past five years, and the dates and causes of such consultation.” He answered this interrogatory, but he did not answer truthfully. He gave the name of one physician — S. J. Lisman — whom he consulted for colds, usually occurring during the winter months, but he suppressed the names of Doctor Moore and Doctor Davenport, of Vincennes, and the cause of his consultation with them. He sought to leave the impression with the company that the only occasion he had had to consult a physician was for an ordinary cold in the winter, and leave it in ignorance of the very serious affliction which had threatened his life, and from the existence of which malady in his system he died in a very few months after the insurance was taken.
In my judgment the verdict of the jury was not sustained by the evidence, and a new trial should have been granted.
Hadley, J., concurring.