the removal of the stove-pipe under the circumstances where a prudent householder might well remove it, which would naturally be the situation during the summer. Consequently the insured was allowed to recover on the policy.

§ 47. Life insurance: General purpose of questions regarding health. This general principle of construing the warranty in the light of the purpose that it was meant to serve has a very important application in life insurance, where numerous questions are asked with reference to the general health of the insured, and as to whether or not he has suffered certain specified diseases. The principle in this class of cases is: that the purpose of asking the insured if he has had various diseases is to get information as to whether or not he is in good health and a good risk; that the company does not desire nor is it reasonable to expect the insured to encumber the application with a detailed recital of every time he has suffered in any degree with any of the complaints mentioned; that "disease" as used in the application means an illness sufficiently grave to affect to a really serious degree the health, and thus render it possible that the applicant is a less favorable subject than he otherwise would have been. Hence, if the insured warrants that he is in good health, the fact that at the time he was suffering from some minor complaint would not avoid the policy, if it did not really affect his bodily condition; for, as a matter of fact, no man is in perfect health (40). The same principle applies where more specific questions are put. Thus, in Wilkinson v. Insurance Co. (41), the following question, among others,

(40) Peacock v. Insurance Co., 20 N. Y. 293.

(41) 30 Iowa, 119.

was asked: "Has the party ever met with any accidental or serious personal injury; if so what was it?" Answer, "No." In an action on the policy the company proved that, several years prior to the taking out of the policy, the insured had fallen at a considerable height from a tree and was sick for some time as a consequence. The jury found, however, that that injury was only temporary and had passed off and did not cause any disease or exert any influence on the subsequent health of the insured; and, under these circumstances, the court held that there had been no forfeiture on the part of the insured and that the company had no defense. The same principle applies to questions as to specific diseases, as, for example, pharyngitis and pneumonia. In such cases the question was submitted to the jury whether the slight attack testified to really affected the insured, and a finding that it did not was held to be conclusive against the company.

§ 48. Same: Good faith insufficient, if answer false. On the other hand, some cases hold that if the disease is serious enough really to affect the health of the insured, then the policy is void if he answers the question in the negative, even though the answer is made in good faith. Thus, where the insured said that he did not have Bright's disease, the jury was instructed that if he had it to such a degree as to affect materially his kidneys, the policy was void whether he knew of the disease or not (42). Of course the same result would clearly follow in the case where he had had the disease and knew it, and said that he had not had it, as in the case of rupture (43).

(42) Insurance Co. v. Yung, 113 Ind. 159.
(43) Insurance Co. v. France, 91 U. S. 510.

§ 49. Same: Specific questions. The same principle applies, if the disease inquired about is one that is rather a symptom of some general bodily condition than a serious bodily affliction, in which cases the insured must answer "yes," if he has had the disease, whether he thinks it is serious or not. Thus, where the inquiry was made whether the insured had had "headaches, serious, frequent, or protracted," the lower court instructed the jury "that the temporary illness of the insured in the case of every day life, brought on by excessive exercise or overwork, is not embraced in the said application; but the answers in said application have reference to such diseases or ailments as indicate a vice in constitution or which is so serious as to have some bearing on the general health, conditions which, according to general understanding, would be called diseases." The upper court held that the question was clear and that the instruction of the lower court was wrong, and sent the case back for a new trial (44). A similar case was one in which the insured was asked whether he had ever had "chronic or persistent cough, or hoarseness, or spitting or coughing of blood," and he answered in the negative. It was held that if he had in fact been afflicted with spitting blood the policy was void on the ground that, as the question was a specific one, the amount of injury that the disease caused was put out of consideration (45).

§ 50. Qualified warranties. Another distinction that is to be kept in mind on the subject of warranty is this: If

(44) Insurance Co. v. Simpson, 88 Tex. 333.
(45) Glutting v. Insurance Co., 50 N. J. L. 287.

in answering the questions, the insured qualifies his answers by stating that they are as nearly right as he can remember, this is sufficient, since it clearly shows that he is answering only according to the best of his knowledge; and the mere fact that a disease inquired for did exist, even to a serious degree, will not prevent a recovery on the policy, unless it can be shown that he did not answer in good faith (46). So, where on the application there was a printed statement at the foot of it, in which it was stated in substance that all that was required of the insured was good faith, and that his insurance could be jeopardized only by dishonesty or carelessness, it was held that warranties were simply statements in good faith, and that, in order to sustain a defense based upon a breach of such warranties, it would be necessary to show that not only the statements were in fact untrue, but that they were known by the insured to be so and were made by him with fraudulent intent (47).

§ 51. Promissory warranties. A further and very important distinction that is to be noticed, with regard to warranties, is the question whether or not the warranty relates only to the state of affairs at the time of taking out the policy, or whether it is so worded as also to amount to a warranty that the general state of affairs shall continue in the future. Frequently this question may be definitely settled by an examination of the terms of the policy. If it is clear by the language that the assured binds himself as to future actions, there can of course be no question. Thus, where the policy contained the following clause: "the as(46) Insurance Co. v. France, 94 U. S. 561. (47) Fitch v. Insurance Co., 59 N. Y. 557.

sured hereby agrees to keep twelve pails full of water on each floor of said mill during the continuance of this policy," the court held that the assured had clearly bound himself to future action, and, unless he did in fact continue to keep twelve pails as aforesaid, his policy was void (48). So, in a life insurance policy, where the policy contained the following statement: "I guarantee that I do not and will not practice any bad or vicious habits that tend to the shortening of life," it was held that the policy was void, where it was shown that the insured several years after the taking out of the policy became intemperate to an excessive degree (49).

§ 52. Same: Implied limitations on warranty. In other cases, although the policy does not state in so many words, it is clear enough upon an examination of it whether or not the warranty in question is for future action. Thus, in the case of Stout v. Insurance Co. (note 36, above), the court held that the language of the policy clearly distinguished between the stores and the upper portion; that, inasmuch as it was stated of the upper portion that it was to remain unoccupied, that bound the insured as to the future. But, since the policy stated as to the lower part of the building merely that it was "occupied by stores", that distinguished between present and future action, and they would not construe it to be a warranty that the building should continue to be occupied by stores.

In the case of Hosford v. Insurance Co (50) the appli cation, which was made a part of the policy, contained the

(48) Garret v. Insurance Co., 20 U. C. Q. B. 200.

(49)

Knight v. Insurance Co., 9 W. N. C. (Pa.) 501. (50) 127 U. S. 399.