to the question asked her for particulars of any illness the applicant had had since her childhood, and to give the name of the physician attending, she had answered that she had but slight ailments, not needing a physician. It was proved, however, that she had serious ailments, had been in the hospital, and was threatened with consumption, and had been in a delicate condition for a good while. The court said that if the jury found that this was a material risk, it seemed to him that the answer was false. The court refused to charge the jury that their verdict should be in favor of the defendant. A verdict was given for the plaintiff, and the defendant appealed.

W. Roger Fronefield, for the appellant.

William I. Schaffer, for the appellee.

461 GREEN, J. The several assignments of error in this case raise practically the same question. That question arises upon the reading of the act of June 23, 1885. (Pub. Laws, 134.) The first section provides: "Whenever the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application made in good faith by the applicant shall effect a forfeiture or be a ground of defense in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk." The meaning of this language is perfectly plain. A misrepresentation or untrue statement in an application, if made in good faith, shall not avoid the policy unless it relate to some matter material to the risk. If it does relate to such matter, the act is inapplicable. If the matter is not material to the risk, and the statement is made in good faith, although it is untrue it shall not avoid the policy. As we said in Hermany v. Fidelity Mut. Life Assn., 151 Pa. St. 17, this act has effected a change in life insurance contracts, and a very wise and wholesome change it is. It provides against the effect which formerly attached to warranties as to many frivolous and unimportant matters contained in the questions and answers set forth in the applications, which often were of no consequence as to the risk involved, but which the courts were obliged to uphold simply because they were warranties. This class of merely technical objections to recovery is now swept away. Ordinarily questions of good faith and materiality are for the jury, and where the materiality of a statement to the risk involved is itself of a doubtful character,

642 its determination should be submitted to the jury. But it was never intended by the act of 1885, nor did that act assume, to change the law in cases where the matter stated was palpably and manifestly material to the risk, or where it was absolutely and visibly false in fact. Neither the Hermany case, nor any other case before or since, has made any change in the law in this class of cases. On the trial of the case now before us, the learned trial judge, who seemed to be at some loss in his views of the act of 1885, gave instructions to the jury which appear to be somewhat inconsistent. After stating the distinction between representations and warranties, and adding that if any false representations or warranties were made, they were material to the risk, he said: "That is the question as I understand it, although I announce this with some doubt, because my first impression was that the materiality where the facts are undisputed would be for the court, but as I understand the decision of the supreme court, as read by the counsel in the case, the question of materiality is for the jury." He then presented various subjects to the jury arising upon the questions and answers contained in the application. As to some of them, he left the question of materiality to the jury, while as to others he ruled that they were material, and that false answers to them would vitiate the policy. The first one of these questions which were submitted to the jury as to their materiality, was the following: "Are you insured in any other company?" The court charged that whether this was material must be decided by the jury, and argued to the jury that it might be material in one sense, but in another sense it might be immaterial. Another question was as stated by the court: "Have you made application and been rejected or has any insurance company, et cetera, declined orally or in writing to insure you, and to that question she has answered, 'No.' . . . . I take it it is for the jury to say whether it was material." Another question was, "Give full particulars of any illness you may have had since childhood." The answer was, "Have had but slight ailments not needing a physician." The court said: "That was her answer. Now it appears as a matter of fact that she had serious ailments, that she had been in a hospital, that she was threatened with consumption, and that she had been, according to most of the testimony, in a delicate condition for a good while . . . . Now here 643 is the answer in writing, she has signed it and she has made that warranty, and if it is material, it appears not to have been truly answered, and if it is material to this risk, it is a forfeiture

...

rendering the policy void, and there can be no recovery.

If you find that was a material representation and that it was false, I charge you there can be no recovery." As to the questions which were asked and answered in relation to spitting blood, unsound in health at the delivery of the policy, consumption, serious ailment at the delivery of the policy, the court held they were material, and if falsely answered the policy was avoided.

In respect to the first class of questions above enumerated in which the materiality of them was submitted to the jury we are clearly of opinion that they were all material and that the jury should have been so instructed. The act of 1885 has nothing to do with this question. If these were material questions before that act was passed they are material still, and must be pronounced by the court without reference to the jury.

A strong case illustrating the materiality of this class of questions is United Brethren Mut. Aid Soc. v. O'Hara, 120 Pa. St. 256. In the opinion delivered by Paxson, J., it is said: "The eighth interrogatory in the application is: 'Have you had any medical attendance within the last year prior to this date? If so, for what disease? Give name and address of the doctor in full.' The object of this inquiry is manifest. If the assured had no medical attendance within the time prescribed, and so answers, that is the end of it. But if he had such attendance, then the company is entitled to know for what cause he had medical advice or aid, and the name and address of the doctor, in order that they may ascertain the particulars from him. And if the assured falsely answer that he had no medical attendance he is not entitled to recover." This case was decided in 1888, three years after the passage of the act of 1885. In Mengel v. Insurance Co., 176 Pa. St. 280, decided in 1896, one of the questions was, "Have you always been temperate?" and the answer was, "Yes." We held there could be no recovery because the incontrovertible proof was that the insured had been very frequently drunk, and at least six times during the preceding five years had required the services of a physician from that cause. 644 He died in four months after the policy was issued, of de lirium tremens, resulting from intemperance. Another point was, "The insured having in his application, in answer to question 23, 'How long since you have consulted any physician? For what disease? Give name and residence,' answered 'About one year, for light influenza, Dr. James W. Keiser, Reading, Pennsylvania,' and the plaintiff having, in the proof of death by

the affidavit of Dr. James W. Keiser, shown that during the five years preceding applicant's death he attended said applicant for vomiting and nausea, the effects of overdrinking, the duration being from twelve to thirty-six hours, and it being the uncontradicted evidence of said James W. Keiser that he had attended the said applicant within four months prior to the application and prescribed for vomiting and nausea induced by drunkenness, there can be no recovery in this case and the verdict must be for the defendant," and, the facts being substantially undisputed, the learned judge reserved the point, but subsequently entered judgment on the verdict. "Without going into other matters assigned for error, the facts admitted in this point show such a breach of a material warranty as to require the court to pass upon it as a matter of law." The judgment was reversed and judgment entered for the defendant on the point reserved.

In United Brethren Mut. Aid Soc. v. White, 100 Pa. St. 12, this court, Gordon, J., said: "In the application appear among others the following questions and answers: What is your age and occupation? Answer. Sixty-two years and four months. -Occupation, laborer. A. Are you married? B. Give name of consort. Answer. A.. B. Widower.' These questions are very plain and simple, and such as anyone capable of entering into a contract might readily comprehend. They were also material, not only in themselves, but by the terms of the agreement, and the insurer had a right to expect straightfor ward and truthful answers, and so the court should have instructed the jury." We held that the questions as to both occupation and marriage were material, and that the court should have so instructed the jury, and should have left nothing to them except the truth or falsity of the answer. In both the cases, Com. Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. St. 41, and Blooming Grove Mut. Fire Ins. Co. v. McAnerney, 102 Pa. St. 335, 48 Am. Rep. 209, the questions were as to the amount of other insurance, 645 which it was claimed were falsely answered, and the decisions were chiefly put upon the ground that the answers were warranties, but the materiality of the questions was assumed in both. In Wall v. Royal Soc. of Good Fellows, 179 Pa. St. 355, the questions and answers related to the health of the insured and the attendance of a physician. The judgment was reversed on the ground substantially that it was competent to the defendant company to prove the falsity of the answers without regard to the question whether they were warranties or only misrepresentations. Upon the foregoing

views we sustain the second, third, fourth, fifth, and sixth assignments of error.

We do not think that all the comments of the court covered by the eighth assignment are correct. They relate to the question as to the spitting of blood, the answer to which was "No," without any qualification. The learned court made a distinction between hemorrhages and other expectoration of blood, which was not called for by the question and answer. It was conceded in the charge that the question was material, and if falsely answered there could be no recovery. We do not think that an expectoration of blood which was so great as to amount to a hemorrhage could be properly excluded from the meaning and operation of the general question, "Have you ever spit blood?" We therefore sustain the eighth assignment. The answer to the defendant's second point should have been a categorical affirmance, and not an affirmance qualified by the remark, "If those questions were asked." Upon that subject there was no doubt whatever, because the questions and answers were a part of the application and necessarily were asked and were an swered. It could only tend to confuse the jury to raise a ques tion on that subject. The tenth assignment is therefore sustained. The same comment applies to the eleventh assignment and it is sustained for the same reason.

We are not prepared to sustain the twelfth assignment, as the deceased might have been afflicted with an entirely occult ailment altogether unknown to her, and in that event her failure to communicate it to the defendant would not be a fraud upon the company.

In answer to the defendant's fifth point, we think it was error to include the element of knowledge and intentional concealment of the assured, as essential to sustain the obligation to 646 make a true answer to the question. The question was as to the most fatal of all diseases, of the presence of which she could not be ignorant, and as the question was most material, and the answer was a warranty, the act of 1885 is not applicable. If the fact was as stated in the point the defendant was entitled to an unqualified affirmance. We therefore sustain the thirteenth assignment.

In the application for this policy the question was asked: "Q. Are you now insured? A. No." The application was signed by the plaintiff in this action as well as by his wife, and it was an absolutely false answer, and the plaintiff admitted on the witness stand that he knew she was insured by other poli