#### Paulina Sharmach Wojciehowski, Appellee, v. National Council of the Knights and ladies of Security, Appellant.

Gen. No. 20,342.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

Reversed and remanded.

Opinion filed January 26, 1915.

Statement of the

Suit by Paulina Sharmach Wojciehowski against the National Council of the Knights and Ladies of Security on a fraternal beneficiary certificate issued by defendant society to one Francis Sharmach payable to his wife, the plaintiff, in the sum of $2,000 in the event of the insured’s death. The defendant contended that the applicant made false statements in the application *255for insurance both as to a disease of the liver and the excessive use of liquors, and it appeared that Sharmach’s death was caused by chronic organic heart disease, cirrhosis of the liver being a contributing cause, and such disease of the liver was frequently caused by excessive use of intoxicating liquors. It also appeared that deceased suffered from delirium tremens. At the trial the jury returned a verdict for the plaintiff for $1,361.29.

Abstract of the Decision.

1. Insurance, § *889*
      ***
      *—what evidence admissible in suit on benefit policy.*In a suit on a fraternal benefit certificate, evidence of conversations between the beneficiary, the plaintiff and another woman were erroneously admitted, where it did not appear that such woman was the agent of the society or clothed with authority to bind it.

2. Insurance, § *896*—what evidence as to medical examination improper.*In a suit on a fraternal benefit certificate, evidence of what was said between the applicant and a medical examiner was erroneously admitted, the examination being signed and being a warranty, upon which with the application, the insurance was issued.

3. Insurance, § *908*—what instructions erroneous.*In a suit on a fraternal benefit certificate, an instruction submitting the question that the society had misled the insured, or waived strict compliance with the contract, and had induced the applicant to make false statements, was erroneous, when there was no proper evidence warranting such question.

4. Insurance, § *908*—when instruction as to warranty erroneous.*In a suit on a fraternal benefit certificate, an instruction that the statements in the application for insurance were warranties and that the plaintiff could not recover if they were untrue, unless the defenses were waived, was erroneous when not warranted by the evidence.

A. W. Fulton, for appellant.

No appearance for appellee.

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Smith

delivered the opinion of the court.

*2565. Insurance, § *908*—when instruction not based on evidence.*In a suit on a fraternal benefit certificate, where there was no evidence that the applicant was not asked whether he had had delirium tremens, a suggestion to such effect to the jury was improper.-

6. Insurance, § *908*—when instruction erroneous.*In a suit on a fraternal benefit certificate, an instruction as tp waiver of the defense whether the insured was addicted to the excessive use of intoxicants was erroneous when not based on the evidence. .