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ties have the right to make their truth the basis of the contract: Miles v. Connecticut etc. Ins. Co., 3 Gray, 580; McCoy v. Metropolitan L. Ins. Co., 133 Mass. 82; Etna L. Ins. Co. v. France, 91 U. S. 510; Powers v. North Eastern Mut. L. Ass'n, 50 Vt. 630. The case at bar differs obviously from those in which an applicant has averred that the answers made by him are true according to his best knowledge and belief, or has limited his statement by other similar words. Such answers, if accepted by the insurer, would render it necessary for it to prove that, as thus limited, they were untrue: Clapp v. Massachusetts Benefit Ass'n, 146 Mass. 519.

The sixth question put to the applicant in form A of the application was, "Have you personally consulted a physician, been prescribed for, or professionally treated within the past ten years?" To this question the insured answered, "No"; and it has been found by the jury, upon the second issue submitted to them, that this answer was false. The plaintiff contended that such an issue should only be found against her in case the answer was intentionally false. In our view, the insured having made the truth of his statements the basis of his contract, it was sufficient for the defendant to show that this statement was actually untrue.

The plaintiff further contended that the question referred to in the application should be construed as referring to a specific disease, and that if the insured had consulted or been prescribed for by a physician for a pain that did not amount to a disease, his answer to this question would not prevent the plaintiff from recovering. The presiding judge declined to instruct the jury in accordance with this contention, and instructed them that if the insured, being, as he supposed, in need of a physician, went to one for the purpose of consulting him as to what was the matter with him, and had an interview, answering such inquiries as the physician deemed pertinent, receiving aid, advice, or assistance from him, that the insured consulted a physician within the meaning of the interrogatory; and further, that if they found that he went to a physician for the purpose of procuring aid and assistance from the physician as such, and the physician prescribed a remedy, or treated him professionally, either by giving him a prescription or by administering hypodermic injections of morphine (of which there was some evidence), then he was professionally treated within the meaning of the interrogatory, or professionally prescribed for. The ruling appears to us

correct. While the question whether the insured had a fixed disease, and what the disease was, might be an inquiry involved in considerable embarrassment, the question whether he had consulted a physician, or had been professionally treated by one, was simple, and one about which there could be no misunderstanding. Had it been replied to in the affirmative, the answer would have led to other inquiries. Indeed, the question which follows, which remained unanswered, is, "If so, give dates, and for what diseases." It is upon the existence of this latter question that the plaintiff founds an argument that it was necessary to show that the insured had some distinct disease permanently affecting his general health before it could be said that he answered this question untruthfully. But the scope of the question cannot be thus narrowed. Even if the insured had only visited a physician from time to time for temporary disturbances proceeding from accidental causes, the defendant had a right to know this, in order that it might make such further investigation as it deemed necessary. By answering the question in the negative, the applicant induced the defendant to refrain from doing this.

In Metropolitan Ins. Co. v. McTague, 49 N. J. L. 587, 60 Am. Rep. 661, it was held that where the applicant stated that he had not consulted a physician, or been prescribed for by one, and such statement was shown to have been false by proof of a prescription received, there could be no recov ery, although it appeared to have been given for a cold. The court say: "That representation did not aver a condition of health, or that it was requisite or proper to consult a physician. It averred that he had not consulted a physician, or been prescribed for by a physician. The fact found contradicted this averment, whether the consultation and prescription related to a real disease or an apprehension of disease."

In the case at bar, after retiring to their room, the jury returned into court with a request that the court would define the word "prescription." There was evidence in the case from three physicians tending to show that, on more than one occasion when he had consulted with them, they had administered hypodermic injections for the pain which he was suffering, and also given him medicine. The presiding judge instructed the jury fully as to the meaning of a "prescription," and stated that "if the insured went to one

of those physicians, and received from him a medicine as a physician, for the purpose of assistance and relief in a difficulty under which he was then suffering or supposed to be suffering, then it is a prescription within the meaning of the law." The judge added: "And it is your duty, as jurors, so to find, . . . . whether the consequences may be as you would wish them to be, or otherwise." The plaintiff excepted to the last paragraph, as a charge upon the facts, and the judge modified this, and said: "I will endeavor in this way to define a prescription, and let this definition stand for the definition objected to. If the insured went to a physician for the purpose of getting his aid, advice, or assistance as a physician, in a difficulty under which he was then suffering, or supposed himself to be suffering, and the physician, hearing what the insured had to say, as a physician, and for the purpose of relief, or cure, or aid, or assistance, gave to the insured medicine, then it may be said that such a physician prescribed for him." To this the plaintiff also objected, as a charge upon the facts, and contended that the jury should have been instructed that the word "prescription" was a word in common use, which they could define as well as the court. The latter instruction leaves clearly to the jury the inquiry whether the insured had gone to the physician, and received from him aid, assistance, medicine, etc., in answer to his application. We cannot see that it has any element of a charge upon the facts. The definition of a "prescription was entirely correct, and even if a word in common use was explained, there was no reason why the judge should not define it in answer to the request, if he gave the jury an accurate definition.

The plaintiff also insists that the last clause of the definition as first given was a charge upon the facts. It is, perhaps, sufficient to say that it was clearly withdrawn, and the latter definition given in place of it. We do not, however, consider that the last clause of the first definition was a charge upon the facts within the meaning of the Public Statutes, c. 153, sec. 5. The judge had defined the word as to the meaning of which they had inquired, and submitted to them in a condensed way the evidence bearing upon the issue which they were to determine. Certain facts, if they find them to exist, he informs the jury, will make a prescription by a physician within the meaning of the law. He then adds: "And it is your duty, as jurors, so to find; and it is

your duty so to find, whether the consequences may be as you would wish them to be, or otherwise." Although the last clause is a caution to the jury to disregard the consequences which may follow their decision, there is no reason why a judge, when he deems it proper to do so in the trial, may not caution the jury not to be swayed by sympathy, prejudice, or passion, and direct them to be governed in their finding by the facts as they exist, without regard to the results that may follow therefrom.

On the back of the certificate, there is, among many other conditions, one which recites that the contract shall be subject to, and construed only according to, the laws of Illinois. The plaintiff relies on the case of Continental Ins. Co. v. Rogers, 119 Ill. 474, 59 Am. Rep. 810, as being the law of Illinois. In this case, it is said that, as a general rule, where the application for insurance on a person's life is expressly declared to be a part of the policy, and such statements are warranted to be true, they will be deemed material, whether actually so or not. But as a qualification, where a statement in a policy of insurance that the answers, statements, etc., in the application are warranted by the insured "to be true in all respects" is followed by the further statement "that if this policy has been obtained by or through any fraud, misrepresentation, or concealment, said policy shall be absolutely null and void," which fraud relates to the answers to the questions in the application, erroneous answers not material to the risk, honestly made in the belief that they are true, will not be so far binding on the insured as to present any obstacle to his recovery. The case is not decided on this point, but on the ground that whether answers are warranties or representations, the burden of proving their falsity is upon the defendant, a proposition not controverted by the defendant in the case at bar. It is only on this last ground that the case can be held an authority for the law of Illinois.

In the case at bar, the policy is declared to be avoided, not only by misrepresentations and fraudulent answers, but by those which are untrue; and the question which is found to have been untruly answered must be deemed to have been made by the parties one material to the risk.

Bill dismissed.

INSURANCE REPRESENTATIONS.

An application for life insurance warranted that the answers contained therein were true, and that if any of them were, in any material respect, untrue or false, the contract should be

void. A representation in such a policy is not fatal unless fraudulently false: Schwarzbach v. Ohio etc. Union, 25 W. Va. 622; 52 Am. Rep. 227, and note; Southern etc. Ins. Co. v. Booker, 9 Heisk. 606; 24 Am. Rep. 344; Price v. Phoenix etc. Ins. Co., 17 Minn. 497; 10 Am. Rep. 166; Wilkinson v. Connecticut etc. Ins. Co., 30 Iowa, 119; 6 Am. Rep. 657; Miller v. Phoenix etc. Ins. Co., 27 Iowa, 203; 1 Am. Rep. 262; McVey v. Grand Lodge United Workmen etc., 53 N. J. L. 17.

COVELL V. CHADWICK.

[153 MASSACHUSETTS, 263.]

LIBEL. INJUNCTION WILL NOT ISSUE TO RESTRAIN defendant from libel ing complainant when the libels complained of are nothing more than false representations as to the character and quality of his property and as to his title thereto. TRADE-MARKS, RIGHTS OF ASSIGNEE OF. If certain formulas, wrappers, and trade-marks have been used in the manufacture and sale of a patent medicine, but the person who manufactured and sold them has died, and his business has been discontinued, no one can acquire from the representative of the deceased any exclusive right to the use of the trade-marks as against another who had previously lawfully obtained the formulas for the preparation of the medicines.

BILL for damages, and to enjoin defendant from manufacturing and selling certain medicines under the names of "Dr. Spencer's Queen of Pain," and "Spinal Paste, or Salt Rheum Cure," and from using certain trade-marks, and from libeling complainant. At the trial the judge limited the testimony, -1. To the transfers to the plaintiff and defendant respectively; 2. To the formulas from which they compounded their medicines; and 3. The dates when the parties began to use the labels and trade-marks. Dr. Spencer, in his lifetime, manufactured medicines by secret formulas, and sold them by the names mentioned above, and used certain labels and trade-marks. In May, 1884, about a year after the doctor's death, his widow expressed her wish that the defendant should have the trade-marks, labels, bottles and everything that went with the medicines, and handed the formulas to defendant. The widow soon afterwards died, and her sister then transferred to plaintiff a formula for manufacturing the same medicine. After this an administrator de bonus non of the estate of Dr. Spencer ratified the transfer to the defendant by the widow, but six months later he executed a formal transfer of the formulas to plaintiff, excepting, however, all rights and privileges heretofore granted by himself or any other legal representative of Dr. Spencer or of his widow.

AM. ST. REP., VOL. XXV. -40

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