#### George John Spoeri, Appellee, v. Modern Brotherhood of America, Appellant.

Gen. No. 18,775.

(Not to be reported in full.)

Abstract of the Decision.

1. Insurance, § 752 * —when statements in application for reinstatement are representations and not warranties. A member's statements as to his health in an application for reinstatement, which states “I * * * do declare and warrant on my honor, that I am of sound condition, good health and temperate habits, etc.,” and which further states “It is further expressly agreed and understood that my said reinstatement shall be null and void if the above warranties and representations or any of them shall be untrue,” held to he representations and not warranties, and an instruction to the jury to that effect held justified.

2. Insurance, § 877 * —proof necessary to avail of false representations in application. To avail of false representations in an application for reinstatement, a benefit association has the burden of proving that the insured knew the statements to he false.

Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed December 2, 1913.

Rehearing denied December 16, 1913.

Statement of the Case.

Action by George John Spoeri against Modern Brotherhood of America, a corporation, to recover upon a benefit certificate issued by defendant to George H. Spoeri, in favor of plaintiff as beneficiary. From a judgment in favor of plaintiff for $1,081.39, defendant appeals.

Church, Shepard & Day, for appellant; William T. Church, of counsel.

Morton L. Roberts and Samuel B. King, for appellee.

*

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

Mr. Justice Clark

delivered the opinion of the court.