sentation or warranty, is not limited strictly to giving directions for taking medicine, but includes anything done for the purpose of alleviating or relieving the condition complained of.27

532. What constitutes good or sound health. The words "good health," or "sound health," as used in representations or warranties in applications for insurance are comparative, and mean a state of health free from any disease or ailment that seriously affects the general soundness or healthfulness of the system, though not necessarily free from mere temporary indisposition which does not tend to weaken or undermine the constitution.28 Sickness which was merely a temporary disorder, having no bearing upon the general health of the insured, does not affect the validity of a policy issued on a warranty of good health.29 A person is in good health within the meaning of such a condition, unless he is affected with a substantial attack of illness threatening his life,3o or with a malady which has some bearing on the general health, as distinguished from a temporary derange

Life Asso. 40 C. C. A. 665, 100 Fed. 719.

And one who goes to a hospital under the advice of a physician is an inmate of a hospital within the meaning of a warranty or representation in an insurance policy; though he did not go for treatment therein, but for the pur pose of obtaining superior accommodations and services. Farrell v. Security Mut. L. Ins. Co. 60 C. C. A. 374, 125 Fed. 684.

"Re Bruendl, 102 Wis. 45, 78 N. W. 169.

And an instruction in an action upon an insurance policy, in response to a request to define the word "prescription," that if the insured went to a physician for the purpose of getting medical aid in a difficulty from which he was then suffering, or supposed himself to be suffering, and the physician, for the purpose of relief or cure, gave him medicine, it may be said that the physician prescribed for him; thus giving in a condensed way the evidence bearing upon the issue, it is not subject to objection as a charge upon the facts. Cobb v. Covenant Mut. Ben. Asso. 153 Mass. 176, 10 L. R. A. 666, 25 Am. St. Rep. 619, 26 N. E. 230.

Plumb v. Penn. Mut. L. Ins. Co. 108 Mich. 94, 65 N. W. 611; Hann v. National Union, 97 Mich. 513, 37 Am. St. Rep. 365, 56 N. W. 834; Galbraith v. Arlington Mut. L. Ins. Co. 12 Bush, 29; Jeffrey v. United Order, G. C. 97 Me. 176;

53 Atl. 1102; Peacock v. New York L. Ins. Co. 20 N. Y. 293; Barteau v. Phoenix Mut. L. Ins. Co. 3 Thomp. & C. 576; Metropolitan L. Ins. Co. v. Howle, 62 Ohio St. 204, 56 N. E. 908; Ohio Mut. Life Asso. v. Draddy, 8 Ohio N. P. 140, 10 Ohio S. & C. P. Dec. 591; Manhattan L. Ins. Co. v. Carder, 27 C. C. A. 344, 42 U. S. App. 659, 82 Fed. 986; Baldi v. Metropolitan Ins. Co. 18 Pa. Super. Ct. 599; Clemens v. Metropolitan L. Ins. Co. 20 Pa. Super. Ct. 567; Barnes v. Fidelity Mut. Life Asso. 191 Pa. 618, 45 L. R. A. 264, 43 Atl. 341; Woodmen of the World v. Locklin, 28 Tex. Civ. App. 486, 67 S. W. 331; Hutchison v. National Loan Fund Life Assur. Soc. 7 Dunlop, B. & M. 467, Bigelow, Life & Acci. Ins. Rep. 444; Cheever v. Union Cent. Ins. Co. 5 Ohio Dec. Reprint, 268, 5 Bigelow. Life & Acci. Ins. Rep. 458.

The fact that an insured person had received a wound does not establish that he was not in a good state of health subsequently, upon applying for insurance, where it appears that the consequence of his wound was inconvenience only, and that it was not dangerous to life. Ross v. Bradshaw, 1 W. Bl. 312.

North Western Mut. L. Ins. Co. v. Heimann, 93 Ind. 24; Provident Sav. Life Assur. Soc. v. Beyer, 23 Ky. L. Rep. 2460, 67 S. W. 827.

30 Manhattan L. Ins. Co. v. Carder, 27 C. C. A. 344, 42 U. S. App. 659, 82 Fed. 986.

ment of the functions of some organ.3 31 Good health consists of freedom from all apparent disease or symptoms of disease, and an unconsciousness of any derangement of the functions by which health can be tested.32 And proof of occasional attacks of dyspepsia yielding readily to treatment does not establish the falsity of a representation of sound health.33 And an idiot or cripple may be of sound health. And mere mental aberration does not necessarily constitute ill health; and the court cannot determine as a question of law that an insane person is necessarily in unsound physical condition, within the meaning of such representations or warranties.35 But in construing the term "good health" in a policy of insurance or a condition of delivery thereof, regard must be had to the character of the risk assumed.36 And no obligation is assumed by the insurer, under a policy requiring sound health at the time of its issue, where the insured was afflicted with a chronic disease to such an extent as to render him unable to pursue his usual calling, which, with subsequent resulting complications, led to his death.37

So, a warranty as to the health of a relative of the applicant means only that the relative inquired about has indicated in his appearance and actions no symptoms or traces of disease.38 Questions as to health, in an action on a life insurance policy containing representations or warranties with reference thereto, are questions of fact to be determined by the jury under proper instructions. And to what extent

Ibid.

"Conver v. Phoenix Mut. L. Ins. Co. 3 Dill. 224, Fed. Cas. No. 3143; Goucher V. Northwestern Traveling Men's Asso. 20 Fed. 596; Jeffrey v. United Order, G. C. 97 Me. 176, 53 Atl.

1102.

And where a policy of life insurance was continued or renewed after forfeiture, upon the condition that the assured was then in good health, he had the right to suppose that the company attached the same meaning to the words "good health" as was attached in the original transaction. Peacock v. New York L. Ins. Co. 20 N. Y. 293, Affirming 1 Bosw. 338.

23 Morrison v. Wisconsin Odd Fellows Mut. L. Ins. Co. 59 Wis. 162, 18 N. W.

13.

"Robinson v. Metropolitan L. Ins. Co. 1 App. Div. 269, 37 N. Y. Supp. 146. Where the company at the time of delivery were apprised of the actual condition of the insured as to being an idiot and a cripple, the term "sound health" should be referred only to the physical

39

condition apart from mental imbecility, or the fact of being a cripple. Robinson v. Metropolitan L. Ins. Co. 1 App. Div. 269, 37 N. Y. Supp. 146.

35 Jacklin v. National Life Asso. 75 Hun, 595, 27 N. Y. Supp. 1112.

"Manhattan L. Ins. Co. v. Carder, 27 C. C. A. 344, 42 U. S. App. 659, 12 Fed. 986.

"Volker v. Metropolitan L. Ins. Co. i Misc. 374, 21 N. Y. Supp. 456.

A person who had chronic dyspepsia for twenty years, which continued to the date of her application for insurance, and which was severe and distressing at times, producing severe chronic constipation, is not a person in good health within the meaning of a representation of good health in an application for insurance. Jeffrey v. United Order, G. C. 97 Me. 176. 53 Atl. 1102.

38 Grattan v. Metropolitan L. Ins. Co. 92 N. Y. 274, 44 Am. Rep. 372.

39 Woodward v. Iowa L. Ins. Co. 104 Tenn. 49, 56 S. W. 1020; Smith v. Metropolitan L. Ins. Co. 183 Pa. 504, 38 Atl. 1038; Barnes v. Fidelity Mut. Life

mental disturbances will destroy or interfere with the functions of the body depends upon the circumstances of each case; and whether mania upon the part of an applicant for insurance is a breach of warranty of sound health is one of fact.40

533. What constitutes disease, sickness, or bodily infirmity generally. Before any temporary ailment can be called a disease, within a warranty or representation against its existence in an application for insurance, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon the general health and continuance of life, or such as according to common understanding would be called a disease."1 Disease or sickness or bodily infirmity, within the meaning of such warranties or representations, does not include ordinary diseases of the country which yield readily to medical treatment, and which, when ended, leave no permanent injury to the system.12 Within these rules a cold is not a disease.43 Nor is a fainting spell, produced by indigestion, or lack of proper food, causing a mere temporary disturbance or enfeeblement, a disease or bodily

Asso. 191 Pa. 618, 45 L. R. A. 264, 43
Atl. 341.

Jacklin v. National Life Asso. 24 N.
Y. Supp. 746; Plumb v. Penn. Mut. L.
Ins. Co. 108 Mich. 94, 65 N. W. 611.

But the opinion of experts that the amount an insured person drank was sufficient to seriously impair a man's health is inadmissible in an action upon his insurance policy, which was issued upon the condition that the company should not be liable if he became so far intemperate as to seriously or permanently impair his health; since the question at issue is the effect upon the health of the insured, and not of some other man; and the capacity of different men for drink is different. Odd Fellows Mut. L. Ins. Co. v. Rohkopp, 94 Pa. 59.

"North Western Mut. L. Ins. Co. v. Heimann, 93 Ind. 24; Cushman v. United States L. Ins. Co. 70 N. Y. 72; McGrath v. Metropolitan L. Ins. Co. 6. N. Y. S. R. 376; Rand v. Provident Sav. Life Assur. Soc. 97 Tenn. 291, 37 S. W. 7; Billings v. Metropolitan L. Ins. Co. 70 Vt. 477, 41 Atl. 516; Goucher v. Northwestern Traveling Men's Asso. 20 Fed. 596; Hutchison v. National Loan Fund Life Assur. Soc. 7 Dunlop, B. & M. 467, 3 Bigelow, Life & Acci. Ins. Rep. 444.

disease, within the meaning of a representation in an application for insurance against the existence of disease. Supreme Lodge, K. P. v. Taylor (Ala.) 24 So. 247.

And an attempt to commit suicide by an applicant for insurance does not establish the existence of a mental or nervous disease or infirmity within the meaning of a warranty of the absence of such diseases in an application for insurance. Mutual Reserve Fund Life Asso. v. Farmer, 65 Ark. 581, 47 S. W. 850.

Holloman v. Life Ins. Co. 1 Woods, 674, Fed. Cas. No. 6,623; Pudritzky v. Supreme Lodge, K. of H. 76 Mich. 428, 43 N. W. 373; Breese v. Metropolitan L. Ins. Co. 37 App. Div. 152, 55 N. Y. Supp. 775.

And a prescription in the handwriting of a physician is not admissible in evidence in an action on an insurance policy, for the purpose of showing that the insured suffered from a disease, contrary to a representation or warranty made by her, where it is not made to appear that the insured presented such prescription to be filled. Plumb v. Penn Mut. L. Ins. Co. 108 Mich. 94, 65 N. W. 611.

43 Metropolitan L. Ins. Co. V. McTague, 49 N. J. L. 587, 60 Am. Rep. 661,

Drunkenness is a habit, and not a 9 Atl. 766.

infirmity; nor is an anemic murmur of the heart, indicating no structural defect, but coming from debility or weakness;15 and nearsightedness is not a bodily infirmity.46 Where, however, an ailment with which an applicant for insurance was afflicted was not a slight functional derangement or temporary complaint, but was sufficiently serious to have an important bearing upon his general health, a denial of the existence of the disease would invalidate the policy. And tubercular affection of the lungs, or consumption, or tubercules upon the brain or the lungs, each constitutes a local disease within the meaning of a warranty of the nonexistence of such disease.48 And tonsilitis is sickness within the meaning of a representation or warranty against the existence of sickness.49

These rules apply to representations and warranties with reference to the existence of disease in a particular organ, the inquiry calling for information as to anything in the nature of a disease of a character so well-defined and marked as to materially disturb or derange, for a time, its vital functions, but not calling for every instance of slight or accidental disorder or ailment affecting the organ, which left no trace of injury to the health;50 but a disease of a particular organ within the meaning of such a warranty or representation includes all disease of that organ, though it was caused by a disease of

“Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L. R. A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945.

In Arnold v. Metropolitan L. Ins. Co. 20 Pa. Super. Ct. 61, however, it was held that if a disease was of sufficient importance to induce the diseased person to consult a physician, it was of sufficient importance to be incorporated in an application for insurance made by him, so as to put the insurer upon guard, to enable it to make such inquiry and such examination as would satisfy it in regard to its character.

"Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L. R. A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945.

But heart disease imports a malady of a serious character, and its existence in an applicant for insurance, representing that he had not been attended by a physician for any serious disease or complaint, is sufficient to invalidate the insurance. Kipp v. Metropolitan L. Ins. Co. 41 App. Div. 298, 58 N. Y. Supp. 494.

And the testimony of a nonexpert witness that an insured person was apparently in good health does not affect the weight to be given to the certificate

of her attending physician, stating that he had treated her for heart disease be fore the date of the policy, where it does not appear that the heart disease was such as to be incompatible with good health, in the eyes of a layman. Ibid.

Cotten v. Fidelity & Casualty Co. 41 Fed. 506; Scoles v. Universal L. Ins. Co. 42 Cal. 523.

"Bancroft v. Home Benefit Asso. 26 Jones & S. 492, 12 N. Y. Supp. 718, Affirmed in 126 N. Y. 682, 28 Ñ. E. 250; Holloman v. Life Ins. Co. 1 Woods, 674, Fed. Cas. No. 6,623.

48 Scoles v. Universal L. Ins. Co. 42 Cal. 523.

"McCollum v. Mutual L. Ins. Co. 55 Hun, 103, 8 N. Y. Supp. 249.

50 Connecticut Mut. L. Ins. Co. V. Union Trust Co. 112 U. S. 250, 28 L. ed. 708, 5 Sup. Ct. Rep. 119.

And evidence that an applicant for insurance had been treated three times for congestion of the liver, but was not much sick, and was dressed every day and around more or less, and soon recovered, does not establish as matter of law a breach of warranty that he never had disease of the liver. Cushman v. United States L. Ins. Co. 70 N. Y. 72.

a different organ.51 It is for the jury in an action upon a life insurance policy to determine from the evidence whether the insured had, during the time covered by his representation or warranty, any affection which could properly be called a sickness or disease within the meaning of these terms as used therein.52

534. Disease in accident insurance.-The question whether death resulted from accident within the meaning of an accident insurance policy, or from disease within an exception in such policy, depends upon whether or not the accident or the disease was the moving and proximate cause of the death.53 If an independent disease supervenes upon the injury, and it is not necessarily produced by it, and causes death, it is death by disease, and not by accident;54 and the rule is the same when the death resulted wholly from disease, though the disease then existed in a slumbering state, and was brought into activity by the accident.55 And death will be regarded as resulting

Metropolitan L. Ins. Co. v. Rutherford, 95 Va. 773, 30 S. E. 383.

52 Manhattan L. Ins. Co. v. Francisco, 17 Wall. 672, 21 L. ed. 698; Goucher v. Northwestern Traveling Men's Asso. 20 Fed. 596; Hubbard v. Mutual Reserve Fund Life Asso. 40 C. C. A. 665, 100 Fed. 719.

Martin v. Equitable Acci. Asso. 61 Hun, 467, 16 N. Y. Supp. 279; Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L. R. A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945; Sharpe v. Commercial Travelers' Mut. Acci. Asso. 139 Ind. 92, 37 N. E. 353. And see McCarthy v. Travelers' Ins. Co. 8 Biss. 362, Fed. Cas. No. 8682; Tennant v. Travellers' Ins. Co. 31 Fed. 322.

Drowning is the moving, sole, and proximate cause of death resulting from falling into water, within the meaning of an accident insurance policy excepting disease from the risk, although the fall may have been due to disease. Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L. R. A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945.

And hernia resulting in death will be regarded as the result of an accident within the meaning of an accident policy, where it was caused by a surgical operation without which death would inevitably have resulted; though hernia is one of the causes of death expressly excepted in the policy. Travelers' Ins. Co. v. Murray, 16 Colo. 296, 25 Am. St. Rep. 267, 26 Pac. 774.

son who died of peritonitis induced by a fall is to be regarded as having died from accident within the meaning of an accident policy, or from disease within the meaning of an exception in such policy, depends upon whether or not at the time of the fall he was suffering with the disease; if he was, then in the sense of the policy he died from the disease although the disease was aggravated and made fatal by the fall. Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013.

"McCarthy v. Traveler's Ins. Co. 8 Biss. 362, Fed. Cas. No. 8,682; Smith v. Accident Ins. Co. L. R. 5 Exch. 302, 39 L. J. Exch. N. S. 211, 22 L. T. N. S. 861, 18 Week. Rep. 1107; Isitt v. Railway Passengers Assur. Co. L. R. 22 Q. B. Div. 504, 58 L. J. Q. B. N. S. 191, 60 L. T. N. S. 297, 37 Week. Rep. 477.

And an accident insurance policy insuring against accident, but providing that it shall not apply unless the injury is the proximate and sole cause of the disability or death, and that the accident shall be the sole cause of death, is operative only when the accident is the direct and sole cause of death independently of any other cause; and if death results wholly or in part from the supervening of disease or other cause, the insurer is not liable. Whitehouse v. Travelers Ins. Co. 7 Ins. L. J. 23.

65 McCarthy v. Travelers' Ins. Co. 8 And a question whether or not a per- Biss. 362, Fed. Cas. No. 8,682.