The opinion
ON REHEARING.
ELLISON, J.
At the argument on a rehearing of this case counsel for both plaintiff and defendant conceded that the question of waiver was eliminated from the case by a non-waiver agreement signed by the parties just after the fire and before any action had been taken by either. The plaintiff then took the position that the record showed the verdict to be for the right party, notwithstanding it should be conceded that *678 instruction number ten was erroneous. Our criticism in the foregoing opinion was not confined to instruction number ten. Instruction number four submits to the jury tbe question whether other insurance, on the property at the time the present policy was taken, was material to the risk. And number five submits to the jury whether any of the "false statements contained in the application were material to the risk. These instructions embrace matters which, as stated in the foregoing opinion, should be declared material, as a matter of law, and should not be submitted to the jury.
Plaintiff has argued at length that the verdict demonstrates that the jury found the total insurance was less than three-fourths of the value of the property insured and that as plaintiff had the right to take out as much as three-fourths of the value without notice to defendant, the verdict is necessarily based on a proper foundation. The argument in support of this is somewhat involved and we are not satisfied that it is well founded in fact. It carries with it the concession of some legal phases of the case we are not willing to concede. But be that as it may, the instructions are based on an erroneous interpretation of the law of 1897 before referred to. Erom this record there is not a particle of doubt but that the jury were impressed throughout that no matter what misstatement plaintiff may have made, it would not affect his right to a verdict, if the jury believed such statement was not material to the risk.
The judgment will be reversed and cause remanded.
All concur.