speak to a fact which happens to have fallen within his own knowledge, while the latter is under no such obligation." It is not always easy to distinguish between fact and opinion, and in medicine particularly it is difficult to separate the two. Rarely can a physician avoid giving an opinion arising out of the medical or scientific fact. (See Chapters XXII and XXIII.)

CHAPTER XXI.

INSURANCE

A life insurance policy is a contract which the insurer undertakes, in consideration of a certain sum of money, called a premium, to pay to the party for whose benefit the insurance is taken, a certain sum of money when the insured dies or attains a certain age. The premium may be paid in one lump sum or it may be paid at certain periods, yearly or oftener, and the amount of the premium is dependent upon the age, sex, trade, health, and other circumstances of the insured, and in some cases also upon the age, sex, etc., of the party for whose benefit the insurance is taken.

Where the insurance is upon the life of a person it cannot be recovered until distinct proof of the death of that person is proved. Where there is any doubt, the death must be proved by those for whose benefit the insurance was taken out. Where insurance money has been paid after the supposed death of the insured, and it is later proved that the insured is alive, money that has been paid out must be refunded to the insurance company, and they are entitled to sue. This is not of rare occurrence.

The most important condition in the issuing of a policy for life insurance is the general state of the health of the insured, and it is here that the testimony of a medical witness is of importance.

As in other contracts, here the law requires there should be strict compliance with the conditions by each party. The practice of "passing" an applicant for life insurance upon a certificate of the applicant's physician is one that is seldom, if ever, used at the present day. Generally, the examination is made by a duly authorized medical inspector or medical examiner connected with the insurance company.

The examining physician is the agent of the company, and not of the applicant for insurance, so where the certificate from the company's physician shows the applicant to have been in good health, it is competent evidence of that fact. The medical examiner is not an agent for the company with reference to the application for insurance, and where he fills out the entire application, including more than the strictly medical part, the company is not responsible and the policy is void, except where

such medical examiner has received application blanks from an authorized agent. The applicant is not required to see that the answers given by him are those written down by the medical examiner, but if he knows his answers are incorrectly recorded, he must report the proper corrections to the company, otherwise he is held responsible for their effect upon the validity of his policy.

The usual medical attendant of the insured is the only individual who can properly certify to the state of the previous health of the applicant, but this is a custom which is open to very serious objection. The insurance company should not have the right to require a certificate from the physician, whereby the physician is exposed to the risk of losing the applicant as his private patient if he gives an unfavorable opinion, and the physician should in all cases feel himself bound to render a conscientious and true opinion. It is much better for the regular physician of the applicant to decline to furnish such a certificate.

Important questions may arise where the opinion of a medical expert is required, where there is alleged infringement of the conditions of the policy. One of the most common is under the heading of disease tending to shorten life. It is impossible to determine what diseases do and what diseases do not have a tendency to shorten life. While any deviation from health might be so considered, the law limits the meaning of the word, considering that it applies to those diseases only which, from the medical point of view, are regarded as of a serious nature, and generally are likely either directly or indirectly to affect the duration of life of the person suffering from them. Such diseases are not only those which run a rapid and fatal course, as tuberculosis and cancer, but may include gout, rheumatism, insanity, or even chronic diseases. The disease itself may not actually be present, but the applicant may show a well-marked tendency toward one of them, and in such cases the policy is void. The question is not whether such diseases are necessarily fatal, but rather whether their tendency is to shorten life; and if this can be established by medical evidence, then the policy is void.

The question of habits is also an important one for the medical witness. The habits may be such that they of themselves tend to shorten life, or to produce injury to the general health, and the concealment of such habits may affect the validity of the policy as much as does the concealment of disease. Habits of intemperance, opium eating, or morphinism, and excessive use of tobacco may materially affect the validity.

The signing of health certificates by practitioners is a practice that is open to objections. Many maintain that if the applicant is in good health at the time he makes application that is sufficient so far as the company is concerned, and an applicant after an attack of sickness will

often apply to another physician for a medical certificate. Such a practice is not to be encouraged as it may lead to the perpetration of a fraud. Where the applicant has suffered from some trivial illness which is not likely to affect the risk, he should state it as well as in those cases that are of a more serious nature, and which are clearly pertinent to the question. In doing so he is acting in good faith toward the company, and the question whether they are material or not may then be decided by the jury.

If the jury find that the concealment is material by law, the policy is void, and it is not necessary in this connection that the disease concealed shall be the ultimate cause of the death of the insured. This rule was laid down by Lord Tenterden in the case of one Colonel Lyons. The insured took out two policies on his life in May and June, and died the following October. The companies refused payment on the ground of misrepresentation and concealment. The company was referred for a certificate of the insured's health to a practitioner who had not attended him for three years previously, and who said in answer to the printed questions that he had no other medical attendant, and that he had never had a "serious illness". The physician to whom he referred said that his life was insurable and the policy was issued. It appeared later, however, on evidence, that the colonel had been attended by two other medical men between February and April for hepatitis and fever, and one of these physicians considered Lyons to be seriously sick, and would not have certified that he regained his health until the end of May. It was mutually agreed by all that Lyons did not die of the disease for which he had been attended during this time, but Lord Tenterden held that if one referred to a certain physician because the latter could speak favorably of his health, and thought that if he referred to the other physician he would not speak favorably, that although the insured did not die of the disease with which he was then afflicted, the policy was void.

The practice of referring to a medical man who has only recently been consulted by the applicant is not infrequent, and this often leads to a lack of fair dealing, and commonly defeats its own object, for the policy may be contested and judged void.

Intemperance. Often the payment of policies is held up on the ground of concealed drunkenness or general habits of intemperance. Although medical men may vary in their opinions respecting the effects of such habits upon the general health, still they should, if the habits are known to them, state that they exist, so that the company may not be in a position to later contest the policy. Although people vary greatly in their susceptibility to the effects of alcohol, yet probably all are more or less injured by it. A good constitution may enable a man to resist the

pernicious effects for a longer time than one who is weakly. As death in such cases is called "natural", there may be no postmortem examination to show the condition of the liver or other organs, which might be valuable evidence in deciding the contested policy. Here the company who refuses payment of the policy is at a disadvantage, for it is bound to prove what they allege by conclusive and satisfactory evidence. It is not sufficient to say that a particular disease or habit probably existed at the time of the issuing of the policy; and even if the habits are shown to have certainly existed, the evidence may still be insufficient to prove satisfactorily that the concealment was willful or material.

Morphinism. This habit in the insured may cause the company to resist payment of a policy on the ground that it is a habit tending to shorten life. An important case is cited by Taylor.

The Earl of Mar insured his life, and two years later died of jaundice and dropsy, at the age of 57. The insurance company refused to pay the policy on the ground that the Earl was at the time of the insurance, and had been for some time previously, an opium eater. The habit had been concealed from the company and it was further alleged that the habit tended to shorten life. It was proved that the Earl had been a confirmed opium eater up to the time of his death. Many of his friends and those about him testified that until the year of insurance he was of a cheerful disposition and had a clear intellect. The main question at the trial was whether opium eating tended to shorten life, and whether concealment of this habit from the company was or was not material. Many experts were called by the company, and although they entertained the opinion that the habit did tend to shorten life they were unable to support their opinion by facts. Their opinions were based not on personal experiences, but upon the general effects produced by opium upon the system. In most of the cases that were collected there was no evidence that life had been shortened by the practice, and on the other hand, some persons had carried it on for years, and had attained a good old age. A verdict was given by the jury in favor of the plaintiff, and on the ground not so much that the practice was innocuous and concealment immaterial, as upon the technical point that the company had not made the usual and careful inquiries into the habits of the Earl. It appeared that the general question with respect to the habits of the deceased had not been answered by the medical referee, and it was considered that the company had waived this question, and that they had therefore taken upon themselves the risk from their own carelessness. A new trial was granted, but the suit was compromised.

This habit of morphinism is an important one, but there are no decisions so far as it affects the life insurance policy. Christison collected from numerous sources twenty-five cases where opium had been