Bockes v. Union Mutual Casualty Co. ( 1929 )

I respectfully dissent from the conclusion announced in the majority opinion and shall state my view of the facts and the law applicable thereto.

My contention is that a fact question was presented and that the case was one for the jury and not for the trial court to determine. My thesis in this case may be briefly stated as follows: Where an accident policy provides (1) for $5000 for loss of life or limb (2 legs) (with a specific provision that in such event no monthly indemnity is payable — the instant case), (2) for monthly indemnity for loss of time where there is no specific loss of life or limb.

(A) That the policy contains two separate and distinct contracts of insurance, viz: (a) against loss of life or limb, (b) against loss of time. That the statements and the question of earnings in the application affect, refer to and are material only to those injuries involving monthly indemnity payments.

(B) That the matter of earnings of the insured has absolutely no bearing, relevancy, or materiality on the matter of loss of life or limb.

The instant action is to recover damages on the ground of fraud and deceit in effecting a settlement under an accident insurance policy. It appears that on January 3, 1922, at Grundy Center, Iowa, the plaintiff-appellant slipped and fell under a railway passenger train which crushed his legs necessitating the amputation of both feet above the ankle joints. The plaintiff in his petition alleges that on December 21, 1921, the defendant insurance company and the plaintiff entered into a certain contract of insurance whereby it insured the plaintiff in the principal sum of $5000 in the event of the loss, by accidental means, of his two feet at or above the ankle joints; that on January 3, 1922, he slipped and fell under a railway train and as a result of the accident lost both of his feet; that during the month of May or June, 1922, the President of the insurance company, by wanton and willful fraud, secured a settlement and a release of all obligations under said policy for the sum of $1000 payable at the rate of $100 per month. Plaintiff prays judgment in the sum of $4000 and interest. The defendant filed an amended and substituted answer by way of a general denial with specific exceptions and admissions. The defendant admitted the execution of the policy and alleged that plaintiff in procuring same falsely represented in his application that he was insured in two other companies and that the total amount of indemnity provided for in said other policies was in the total sum of $80 per month; that the insurance applied for in the different companies in itself or in combination with the other insurance carried did not exceed his monthly income. It is alleged that these statements were untrue and fraudulently made and that the policy would not have been issued to the plaintiff, had he not made these false representations to the defendant company. Other allegations are contained in defendant's answer, but they are not material in the disposition of this appeal.

It is clearly shown by the application attached to the policy in question that the plaintiff Bockes applied for three kinds of insurance, all to be included in a standard form of policy, to wit (1) accidental death, (2) accident indemnity and (3) sickness indemnity, and that the premium for each kind was to be paid in a single named amount. The policy which was issued to him by the defendant company distinctly and without ambiguity states at the head thereof that it "provides indemnity for loss of Life, Limb, Sight, or Time" and in the "insuring clause" it provides for "Loss of Time through disability from sickness." It is also obvious that the company in writing the policy has, under the heading "Specific Total Losses" and "Monthly Indemnity," made a separation and distinction between loss of Life, Limb and Sight and Loss of Time by reason of injury or sickness and specifically states under the "Partial Disability" Clause (b) under Section II, That no payments of monthly indemnity shall be made in caseof any loss enumerated in Section I, that is for death, dismemberment or loss of sight. The policy issued to the plaintiff by the defendant company, by its provisions, granted insurance as follows:

A. For accidental loss of life, limb or sight and for which a stipulated amount, called, "Principal Sum" was to be paid or a stipulated part thereof, depending upon the nature of the loss of limb or sight.

B. For loss of time on account of disability caused by accident or sickness and for which a monthly indemnity was to be paid, depending upon the duration of such disability. Section I applies solely to loss of life, limb or sight and recites without reservation that the company will pay In Lieu of All Other Indemnity the Principal Sum, and under Section II which applies solely to loss of time recites specifically that No Payments of Monthly Indemnity Shall be Made for Any Loss Enumerated Under Section I. This is a standard form policy and provision 19 of the "Standard Provisions" in said policy provides:

19. "If a like policy or policies, previously issued by the company to the insured be in force concurrently herewith, making the aggregate indemnity for loss other than that of time on account of disability in excess of $15,000, or the aggregate indemnity for loss of time on account of disability in excess of $100 weekly, the excess insurance of either kind shall be void and all premiums paid for such excess shall be returned to the insured."

It is quite obvious that the defendant company recognized the separation and distinction between the insurance granted for loss of life, limb, or sight and for loss of time, and the policy uses the expression "either kind" in connection therewith. The insurances in said policy are clearly separable and are so held to be by a uniform line of decisions. It is said in Employers' Liability Assur. Corp. v. Morrow, 143 Fed. 750 (C.C.A. 6th Dist.) (Tenn.) in speaking of a policy similar to the one in the instant case:

"But no right to receive any weekly indemnity whatever exists for the loss of an arm. * * * In that event, the express * * * covenant is to pay the assured the sum of Ten Thousand Dollars. * * * Neither is there any analogy between the loss by fire of specific property and the loss by accident of an arm or other limb. In the first case, property has a market value, and when that market value is paid the assured is indemnified. A bodily injury has no market price. If it results in a mere disability to continue the assured's avocation, the value of the assured's time during such disability furnishes a definite standard for a contract of indemnification. * * * But the contract recognizes that for a death by accident, or the loss of limbs, or an eye, there is no market standard of value and accordingly provides in most explicit terms for the payment of an agreed sum to be paid in full discharge of the liability under the policy."

The foregoing statement of legal principle was adopted and approved by this court in Wahl v. Inter-State B.M. Acc. Assn.,201 Iowa 1355. Therein we said: "`[Life insurance] in no way resembles a contract of indemnity. * * * it really is what it is on the face of it, a contract to pay a certain sum in the event of death.'" It is manifest that the policy issued to Bockes was an instrument containing at least two separable and distinct contracts of insurance, neither having anything to do with or depending upon the other. In other words, if the insured suffered the loss of two legs, or other "principal sum" injury, there was to be no monthly indemnity payable and if he suffered disability and loss of time there was to be no "principal sum" payment. The situation was exactly the same as if the defendant company had issued two separate and distinct policies, one insuring against loss of life, limb and sight, and the other insuring against loss of time. This situation is in no way changed because only one application and one policy was used. Things equal to the same thing are equal to each other. When the clauses in a policy are clearly separable, effect must be given in conformity therewith. If the risk as to one class would not affect the risk on the other class or classes, although the policy may be void as to one class, it would not be void as to the other class. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625; General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.); Aetna Life Ins. Co. v. Bethel, 131 S.W. 523 (Ky.); Trabue v. Dwelling House Ins. Co., 25 S.W. 848 (Mo.), 23 L.R.A. 719; Pratt v. Dwelling House Ins. Co., 130 N.Y. 206.

The plaintiff-appellant testified that from the time the proof of loss was prepared and sent until May 9, 1922, no one from the appellee company had seen him with regard to the matter of his claim. He also testified that on May 9, 1922, William Schulz, of Des Moines, President of the appellee company, visited him at his father's farm near Conrad, Iowa, and in the presence of appellant's brother, Clarence, who, it was stipulated by counsel, would testify in respect to the conversation between appellant and Schulz, substantially the same as testified by the appellant, which conversation was that Schulz said that he felt sorry for the appellant as it seemed too bad to see anyone crippled as he was; that the company did not owe appellant anything under the policy; that appellant was over-insured and due to that fact the appellant had no claim; that appellant had been getting more on the monthly plan than he was earning; that appellant was over-insured on account of the other policies; that Schulz did not tell them that there was no indemnity payable when he lost two legs; that Schulz finally agreed to give appellant $800 in cash or $1000 on the installment plan; that Schulz advised the appellant to accept the settlement offered him; that Schulz said appellant had better take that or he would not get anything out of it; that appellant did not have any legal rights; that if appellant sued he would not get anything; that he (Schulz) would rather give it to appellant than to give it to the lawyers; that it would probably cost that much to defend a trial; that as to the outcome of any litigation, appellant would not get anything; that there is no liability on the part of the company on appellant's contract, and that the reason for his saying that was that the appellant's weekly indemnity on the three policies was in excess of appellant's earnings.

On cross-examination appellant was asked and made answer to the following questions:

"Q. And the only representations that he made to you that you can remember, which he claimed had invalidated the policies, was the one that your income wasn't equal to the aggregate amount of the indemnities upon the three policies, or that in substance?

"A. Well he said I was over-insured.

"Q. That is what you understood him to mean when he said that you were over-insured, as you stated yesterday, you didn't understand him to mean that you were over-insured in the sense of the indemnity clause that applied in case you lost both legs. You say that you don't make claim you were over-insured in that respect?

"A. No, it was the weekly or monthly indemnity.

With respect to the making of the application for the insurance the plaintiff testified that he was acquainted with Brownell and was in the month of December, 1921; that Brownell solicited the policy and that he purchased a policy from him; that he gave Brownell an application in Eldora, Iowa, on or about December 21, 1921; that Brownell asked him some questions and that he (Bockes) answered them; that he answered them truthfully; that he recalled that Brownell asked him as to other insurance that he had and that he told him the companies and told him how much the principal sum of the other policy was and also the weekly and monthly indemnity; that he did not read the application before signing it because he thought that Brownell knew more about it than he did; that he had never done any insurance business and knew nothing about it; that he relied upon Brownell to fill out the application correctly.

An applicant is justified in relying upon the advice and the assistance of an agent in preparing the application and the language will be given a reasonable construction in favor of the insured in order to avoid forfeiture on technical grounds. Bucknam v. Inter State Bus. Men's Acc. Assn., 183 Iowa 652. Brownell as a witness testified that he was the agent of the defendant insurance company on Dec. 21, 1921, and on or about that time received the application from Bockes for a policy of accident insurance in the defendant company; that at the time he received the application he knew that Bockes did some wrestling and from the time he received the application until May 9, 1921, the date of the settlement no one for or representing the defendant company asked him what had been told him by Bockes, or what he knew of or about Bockes at the time the application was accepted. Schulz, the President of the Company, testified he was the President and the directing head of that institution and was familiar with all the operations and methods of the Company; that he saw the original policy but did not have it with him upon the trial; that the defendant company was organized and began to write business in September 1920; that prior to that time he was with the Bankers Accident and had been in the insurance business about 20 years; that he settled claims for the Bankers Accident and was familiar with the operation of the pro-rata clause.

The appellant Bockes had received no advice respecting his claim from anyone, and there was nothing to aid him beyond the statements made to him by Schulz. It is further shown that Schulz, after the conversation with Bockes on the farm, went to a Conrad bank, selected by Schulz and at that place Schulz prepared two instruments. One of these bore the caption "Proposition for Advanced Settlement." Bockes had nothing to do with the drafting of that document and signed it when requested so to do by Schulz. This document was addressed to the insurance company at Des Moines and stated that for the purpose of making settlement in advance of all claims accruing at any time under the said policy on account of accidental injuries sustained by Bockes on or about January 3, 1922, that Bockes offered to accept the sum of $1000 in full payment and discharge of all claims of every kind, nature, or description, binding Bockes, his estate, heirs, assigns and beneficiaries. From the very nature of the document the jury could well find that there was a purpose in preparing such an instrument for Bockes to sign. Immediately thereafter, another instrument constituting a full release to the company of all liability from whatever source that had accrued or thereafter to accrue as the result of accidental loss of both feet on January 3, 1922, was prepared by Schulz which Bockes signed upon request. These writings made it appear that Bockes made the offer to accept $1000 before the insurance company, by its President Schulz, agreed to pay him the amount stipulated in said writings. The jury might well find, under all circumstances, that the procedure taken was a part of a scheme to defraud. A compromise settlement induced by fraud is no different than any other settlement so induced. Pertinent language is used in the case First Nat. Bank v. Hartsock, 202 Iowa 603:

"Fraud is not committed openly. It is an offense of secrecy. Direct evidence is rarely obtainable. Frequently it can be shown only by the circumstances admitted by the parties to it. * * * The circumstances of a bona fide transaction are ordinarily consistent with each other, and with generally recognized business methods and fair dealing, and not incredible. A fraudulent transaction naturally begets stilted, contradictory, and incredible evidence. The bona-fide transaction and the fraudulent one each has its well recognized indicia. * * * `The motives and intentions of parties can only be judged of by their actions and the nature and character of the transaction in which they are engaged. These often furnish more conclusive evidence than most direct testimony.'"

The record shows that the appellant was insured, at the time he applied for insurance in the appellee company, as follows:

Principal Sum Monthly Indemnity

Mutual Benefit $2000 $ 80 Bankers Accident 1000 100

and which in combination with the insurance applied for in the defendant Company made the total insurance as follows:

Principal Sum Monthly Indemnity

$8000 $280

No evidence whatever was produced on the trial of this cause showing what the wages, salary or income of appellant was at the time of the making of the application for insurance in the appellee company. The appellant, however, testified that he had been asked the questions by Brownell, the agent, and that he had answered them truthfully.

It appears that the denial of liability on the policy for the loss was based by appellee upon the answer to questions 9, 11 and 20 of the appellant's application. As heretofore pointed out, the insurance applied for was of three kinds, (1) accidental death, (2) accident indemnity, and (3) sickness indemnity. The applicant was asked these questions by the agent and the latter wrote the answers as they appear in the application. The questions and answers as they appear are:

"(9): Have you any insurance against accident or sickness in other Companies, Associations, Societies, or lodges? (Name company, amount, and monthly indemnity.) Bankers Accident and Mutual Benefit $80. No.

"(11): Does the insurance hereby applied for by itself or in combination with other valid insurance on the same risk or otherwise applied for and not issued, exceed your monthly wages, salary or income? No.

"(20): Do you understand and agree that the right to recover under any policy which may be issued on the basis of this application shall be barred in the event that any one of the foregoing statements material either to the acceptance of the risk or the hazard assumed by the company is false, and made with the intent to deceive, and do you further agree that this application shall not be binding upon the Company until accepted by the Company or by an agent duly authorized to issue policies and that the policy will not be in force until all policy fees or premiums are paid and that the maximum contingent liability of the policyholder hereunder shall be in an amount equal to the premium paid for the term for which this policy is written? Yes."

The appellant testified that he recalled Brownell's asking him about the other insurance that he carried and that he told Brownell how much principal sum of the other policy was and also the weekly and monthly indemnity he had. The question in the printed form required that the name of the Company, the amount and the monthly indemnity be given. The answer as it stands is totally lacking as to the requirements. The fact that the appellee company accepted the answer as it stood and issued to the appellant its policy, that answer being a part of the consideration for the contract, without seeking further enlightenment as to the facts called for by the question, cannot now be repudiated and made a basis for a claim without evidence that the appellant did not truthfully answer the question. It was within the power of the appellee company to refuse to issue a policy on the application until the appellant had stated that he had insurance as follows:

Company Amount of Amount of Monthly Indemnity Principal Sum Accident Sickness

$_______ $_______ $_______

The company did not do so, but accepted the answer as an answer when it was far from being an answer as required by the question. It appeared not to be material to the appellee company what amount the appellant carried as "principal sum" (death and dismemberment) insurance. It was not even hinted at in the answer to question 9. The acceptance of an application by an insurance company with an unanswered question or one insufficiently answered without requiring further information thereon estops the company to set up the lack of such information and the insured's failure to fully answer the question as a defense to any claim wherein the unanswered or insufficiently answered question is material. Fountain v. Standard Fire Ins. Co., 155 Iowa 96; Collins v. Iowa Mfgrs. Ins. Co., 184 Iowa 747. The very fact that the appellee company accepted the application with question 9 unanswered as to the amount of principal sum insurance carried is particularly persuasive and conclusive that it was not interested in the amount thereof as affecting the particular hazard or risk involved under accidental death or dismemberment insurance. Wahl v. Inter-State B.M. Acc. Assn.,201 Iowa 1355; Standard Acc. Ins. Co. v. Walker, 102 S.E. 585 (Va.); Employers Liability Assur. Corp. v. Morrow, 143 Fed. 750 (C.C.A. 6th Dist.) (Tenn.); Aetna Life Ins. Co. v. Claypool, 107 S.W. 325 (Ky.); Claypool v. Continental Cas. Co., 112 S.W. 835 (Ky.).

The question in an application as to weekly indemnity in other companies refers to matters of weekly indemnity injuries and has no reference to principal sum injuries. Standard Acc. Ins. Co. v. Walker, supra.

As to question 11 in the application it is quite obvious that it has no reference to the principal sum (death and dismemberment) insurance for the simple reason that the principal sum amount would invariably exceed the monthly wage, salary, or income of the applicant. It is conclusive that this question applies solely to Weekly or Monthly indemnity insurance and not to Principal Sum Insurance. General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.). This answer if taken as applying to Principal Sum Insurance would on its face be preposterous. Concede for the moment that the amount of monthly indemnity insurance carried did exceed the monthly wage, salary or income of the applicant, where distinct items or classes of property are separately insured under one policy, the policy may be invalid as to one class without being invalid as to all classes thereunder by reason of a breach of conditions with reference to one item or class. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625. The conditions of an accident insurance policy relating to loss of time have no application to principal sum injuries. Aetna Life Ins. Co. v. Bethel, 131 S.W. 523 (Ky.). It is apparent that the appellee company was guarding against over-insurance in its risks and this is evidenced by the particular provision which it inserted in its policy form to wit:

"19. If a like policy or policies, previously issued by the company to the insured be in force concurrently herewith, making the aggregate indemnity for loss other than that for loss of timeon account of disability in excess of $15,000, or the aggregate indemnity for loss of time on account of disability in excess of $100 weekly, the excess insurance of either kind shall be void —." (Writer's italics).

Here we find conclusive evidence that the appellee company acknowledged that two kinds of insurance were granted by the policy and that they were distinct and separable. Where insurance is made on different kinds of property, each separately valued, the contract is severable, even if but one premium is paid and the amount insured is the sum total of the valuation. Trabue v. Dwelling House Ins. Co., 25 S.W. 848 (Mo.), 23 L.R.A. 719. Policy conditions referring to matters of weekly indemnity have no application to principal sum matters. General Acc. Life Assur. Corp. v. Meredith, 132 S.W. 191 (Ky.). It is a matter of common knowledge of which this court will take judicial notice that it is a general practice of accident insurance companies to issue policies covering accidental death and dismemberment losses only. As the amount of such insurance cannot be dependent upon the wage, salary or income of the insured to any greater extent than ordinary life insurance, it is then immaterial as to what income the assured may have as respects accidental death or dismemberment insurance, and for the reason that in no event does the policy cover injuries intentionally inflicted by the insured upon himself. There is no relation between the amounts of death and dismemberment or "principal sum" insurance and the weekly or monthly indemnity that an assured may carry. The limit set by the appellee company when compared with the amounts issued to appellant by the other companies is sufficient evidence on that point.

Principal Sum Monthly Indemnity

Limits in provision 19 $15,000 $400 Bockes policy 5,000 100 Bankers Accident policy 1,000 100 Mutual Benefit policy 2,000 80

The amount of either kind of insurance may be varied to suit the desire of the applicant. He may take a small amount of principal sum and a considerable amount of monthly indemnity or vice versa. This court said in Wahl v. Inter-State B.M. Acc. Assn., 201 Iowa 1355, in discussing an attempt to reduce the benefits payable for an accidental death on account of other insurance:

"`* * * [life insurance] in no way resembles a contract of indemnity * * * it * * * is what it is on the face of it — a contract to pay a certain sum in the event of death.' * * * The paucity of authorities is suggestive that few insurance companies have considered prorating as applicable to death benefits or life insurance. * * * It is urged that the insured might willfully incur or expose himself to a seeming minor injury, with the view of collecting accident insurance, and that the injury might result fatally. * * * We think the case supposed is too remote for serious consideration * * *."

Similar conditions apply to the dismemberment feature in the "Principal Sum" or "Specific Total Loss" feature of accident insurance policies. The Wahl case, supra, specifically approved Employers Liability v. Morrow, supra, wherein the facts presented disclose that the insured had reported that his earnings exceeded the amount of the weekly indemnity carried. The insured lost one arm for which a specific sum was payable under the policy. This is quite similar to the basis for the denial of all liability to the appellant under his policy in the instant case. There is no showing whatever here that the appellee company would not have issued to Bockes, had he applied for it, a death and dismemberment policy for an amount approximating $15,000 regardless of his monthly wage, salary or income.

Respecting question #20 and the answer thereto as found in the application, it is clearly specified that any false statements which are material either to the acceptance of the risk or the hazard assumed by the company, if made with intent to deceive, shall be a bar to recovery under the policy issued. At this point we may well inquire just what did the monthly or weekly earnings of Bockes have to do with the loss of two feet or two legs when the policy specifically provided that in such an event no monthly indemnity was payable. We ask would anyone earning $1000 per month be less likely to slip and fall under a train than one earning $50 or $100 per week? The answer is obvious — earnings and slipping are in no way related to or dependent upon each other. In brief, death and dismemberment insurance has no relation whatever to the monthly wage, salary or income, and therefore such insurance is not affected by any statement in the application regarding earnings as these refer to and are material only to the monthly indemnity injuries.

Clearly a jury question was presented on the uncontradicted testimony offered by the plaintiff-appellant. Is it for the trial court to direct a verdict in the light of the statements made by President Schulz to Bockes, the insured, to secure the settlement which he did secure? Let us for the sake of emphasis repeat in sentence form the statements that led to the settlement. These are:

Appellant had no claim against the appellee company.

Appellant wasn't entitled to anything under the policy.

Appellant couldn't recover anything in a suit at law.

There was no liability of appellee company to appellant on account of the loss of two feet.

He felt sorry for appellant because of his loss.

He would rather give the appellant $1000 than to spend that amount in defense of a law-suit.

The basis of the denial of liability was that the appellant had made false statements in the application as respects the amount of his monthly wages or income. An insurance adjuster is presumed to know the law applicable to the situation and if he falsely represents the law, the same constitutes misstatements of fact and is fraud. Rauen v. Prudential Ins. Co., 129 Iowa 725. Schulz was an experienced claim adjuster. He was in a position to know the legal effect of every word, phrase, and clause in both the application and the policy forms used by the appellee company. Schulz as President executed every policy contract. He was in a position to know the law controlling insurance contracts issued by his company. Scienter lies in this fact. He is chargeable with the knowledge that the policy issued to the appellant provided for two kinds of insurance and that what might invalidate one kind would not affect the other. He was in a position to know that questions in an application respecting weekly or monthly indemnity in other companies referred to matters of weekly or monthly indemnity injuries and had no reference to death or dismemberment injuries. Standard Acc. Ins. Co. v. Walker, supra. He was in a position to know that the amount payable for Principal Sum injuries is not affected by statements in the application as to earnings. (Employers Liability v. Morrow, supra, approved in Wahl v. Inter-state, supra.) It is strangely significant that the appellee company has not called to our attention a single authority that sustains its claim and proposition. The case of Graf v. Employers' Liability Assur. Corp., 190 Iowa 445, is not in point on the fact side. In that case a man was injured while engaged in a more hazardous occupation than that under which he was insured, and the decision invoked the effect of the pro rata clause on account of change of occupation and the settlement was made by the insuring company in the proper amount in accordance therewith. The settlement was questioned on the sole ground that the policy form had never been approved by the Auditor of the State as required by statute. There was no claim of fraud and this court held that the failure to have the policy form approved did not prevent the application of the pro rata clause. In the case at bar whether the statements by an insurance adjuster to secure a settlement were representations or merely expressions of opinion do constitute a question for a jury. Representations by an insurance adjuster through which an unfair settlement is obtained constitute fraud. Rauen v. Prudential Ins. Co., 129 Iowa 725; Owens v. Norwood-White Coal Co., 188 Iowa 1092. It is for the jury to determine whether an auto dealer's representations were mere expressions of opinion or representations of fact. Iowa Guaranty Mort. Corp. v. Lande, 202 N.W. 514 (Iowa). (Not officially reported.) Where one falsely asserts a material fact to be true as of his own knowledge and damage results, he is not thereafter permitted to assert that he had no knowledge upon the subject. John Gund Brew. Co. v. Peterson, 130 Iowa 301; Smith v. Packard Co., 152 Iowa 1. Where the plaintiff is in fact ignorant of the law, and the other party knowing him to be so, and knowing the law, took advantage of such ignorance, to mislead him by a false statement of the law, it constitutes fraud. Berry v. Whitney,40 Mich. 65; Hubbard v. McLean, 90 N.W. 1077 (Wis.). The appellant Bockes had had no experience in insurance business. He was not versed in insurance law. On the contrary Schulz was an expert in insurance matters and is presumed to know the law. It is obvious that he did know. He did make assertions to Bockes relative to matters with which he was quite familiar, and under these circumstances Bockes had the right to rely on those assertions. In brief, Schulz was in a position to know and he will be charged with knowledge. Taylor v. Anchor Mut. Fire Ins. Co., 116 Iowa 625; Tott v. Duggan, 199 Iowa 238; First Nat. Bank v. Smith, 199 Iowa 1277. It will also be remembered and it is a significant fact that Schulz expressed sympathy and sorrow for the appellant. Expressions of solicitude and sympathy in an effort to gain the confidence of a party may be considered by the jury as bearing on fraudulent intent. Plaintiff-appellant testified that he relied upon what was said by Schulz. It is urged that there was a controversy between the appellant and appellee and that Schulz adjusted the same by a compromise settlement. This is not borne out by the record. True, it has always been the policy of courts to encourage the amicable settlement of all controversies, but as said in Kelly v. C.R.I. P.R.R. Co., 138 Iowa 273, 280:

"* * * it is even more a matter of good policy and good morals to stamp the law's disapproval upon settlements which bear the taint of fraud and undue advantage."

The Kelly case affirms Rauen v. Prudential, supra, and reaffirms Coles v. Union Terminal Railway Co. 124 Iowa 48. The instant case is predicated on fraud and the same quantum of evidence is necessary that would carry any question of fraud to the jury and no more. The circumstances under which the settlement was made, the representations connected therewith and other matters herein disclosed, are all matters of fact, and are within the special province of the jury to determine. The plaintiff met his full burden of proof when he established that the policy contained two contracts of insurance, the loss of two legs and the undisputed representations made to him by the President of the defendant company in securing the release. In other words, the appellant met his burden by showing that the settlement was induced by representations that had nothing whatever to do with the loss of two legs. Putting the thought in another form, the record does not furnish a scintilla of evidence that question No. 11 of the application was answered falsely with intent to deceive, but on the contrary, the appellant testified that he answered all questions truthfully. It appears that the trial court in directing the verdict for the appellee insurance company assumed that the allegations contained in the appellee's answer with respect to false statements' having been made in the application were in fact proved, and that the burden was upon the appellant to disprove such allegations. The law forbids a party who has full knowledge of the ignorance of the other contracting party to not only encourage that ignorance, but also to knowingly deceive and lead the other party into a mistaken conception of his legal rights. Such a party may not shield himself behind the doctrine that a mere mistake of law affords no ground for relief. Carpenter v. Detroit Forg. Co., 157 N.W. 374 (Mich.). Summarizing the matters heretofore set out it is shown that any representation, true or untrue, of the appellant in his application for insurance respecting matters of weekly or monthly earnings as compared to the amount of weekly or monthly indemnity, has nothing whatever to do with the amount to be paid for principal sum injuries. I would reverse.