delivered the opinion of the court.
This judgment must be reversed. To uphold it we should be obliged to ignore well settled principles of the law of insurance.
The policy was not incontestable on account of false representations in the application. It only became so by its terms after the lapse of a year from its issuance. That year had not passed. The provision that “no such statement shall * * * be used as a defense to a claim” under the policy, plainly refers by all rules of construction to the “statements” just before described, that is “statements made by the insured in the absence of fraud” and “deemed representations and not warranties.” • If a statement of the assured was made fraudulently as an inducement to procure the issuance of the policy to her, it was not “a statement made by the insured in the absence of fraud. ’ ’
Under these circumstances it was plainly proper to admit the evidence of the answers made by the insured to questions of the medical examiner made when he examined her following her application, when those answers in connection with the stipulated facts showed a wilful misstatement of matérial matters affecting the risk. Considering the application alone, however, it is inconceivable that a person who on November 18, 1908, underwent a capital operation, with its resultant risks, an operation which is resorted to in the natural order of things, only on account of the imminent presence or threatened recurrence of a dangerous and painful ailment, and who for twenty days thereafter remained in the hospital where the operation took place, should in ten days thereafter have answered in the negative the question, “Have you so far as you know ever had any serious illness or disease” without an intentional and intelligent purpose to deceive. This was the question put to the insured and thus answered in the application itself, which was a part of the policy. The falsity of the answer is, in onr opinion, undeniable, and admitted by the stipulation on the facts; its materiality is a matter of law. As the Supreme Court of Pennsylvania said in Murphy v. Prudential Ins. Co., 205 Pa. St. 444, “It has always been held that a court must declare as material a false statement to a request that the insured give full particulars of any illness that he might have had;” and we do not think that in the Illinois cases cited by defendant in error to us this is controverted. It is true that questions concerning the construction of the term “serious illness” have been discussed by Illinois courts; but as we have before said, we do not regard it open to debate that appendicitis followed by a capital operation and a considerable hospital sojourn, is a serious illness; and neither the courts- of Illinois, nor of any other state, so far as we know, have ever said that an obviously false statement in reply to the question indicated was immaterial. The contrary doctrine is the basis of the decision in many cases, as in Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186.
Whether the false answer is considered as a warranty (because expressly made part of the contract of insurance and fraudulent) or as a representation only, it avoids the policy, for it was material.
But in addition to these false statements in the application, the assured made categorically at - least ten more false statements to the medical examiner as am inducement to the making of the policy. They include statements made twelve days after coming out of the hospital, to the effect that she had never undergone a surgical operation, that she was last attended by a physician about four years before, that she had never had any serious illness, and that she had never had appendicitis.
The medical examiner testified that if he had known the facts and the falsity of these answers at the time he made the examination and report to the company, he should not have recommended the company to have accepted the risk, as he did.
The “statements” as we have noted we regard not “made in the absence of fraud,” and like any^other actually fraudulent statements made as an inducement to the issuance of a policy, are available in defense in an action on it, perhaps in any case, certainly in any case where the policy is not on its face incontestable at the time of death. Welch v. Union Cent. Life Ins. Co., 108 Iowa 224; Reagan v. Union Mut. Life Ins. Co., 189 Mass. 555.
The instructions to the jury we regard as based on a wrong view of the law applied to the facts of this case, and misleading. They left to the jury questions properly for the court. They were questions too, the answers to which by the court in the only admissible manner would have required it to peremptorily instruct the jury for the defendant.
The judgment is reversed, and as our view of the law applied to the admitted and uncontradicted facts of this case would prevent any recovery on this policy, we do not remand the cause.
Reversed.