§ 5. Concealment. A concealment corresponds negatively to a representation. One misleads the insurer by the statement of what is false, the other equally misleads him by the concealment of what he ought to know. It is the designed intentional withholding of some fact material to the risk, which good faith required that the insured should disclose. That which the contract in terms requires the insured to disclose is, not the subject of concealment, but of warranty, or of representation, of which we have treated above. In determining whether the withholding of information was intentional, the insured will be presumed to possess ordinary intelligence and knowledge. If he is asked whether he has any disease, and he does not know that he has, yet he is bound to disclose any symptoms of disease. Vose v. Eagle Ins. Co., 6 Cush. (Mass.) 42; Miles v. Conn. Ins. Co., 3 Gray (Mass.), 580. Where the insured omitted fo mention that he had at a previous time been insane, it was no concealment, if no question on the point was asked, although the insurers did not wish to insure insane persons. Mallory v. Travelers' Ins. Co., 47 N. Y. 52; 7 Am. Rep. 410. Where the applicant was asked whether he had had any sickness within ten years, he was not wrong in omitting to mention a slight indisposition which would not ordinarily be called a sickness. Wise v. Mutual Benefit Ins. Co., 34 Md. 582; Britton v. Mutual Benefit Ins. Co., 3 N. Y. Sup. 220. The inquiries are presumed to relate to matters which affect the general health and the continuance of life, and not to temporary and occasional ailments. And a disease of well-marked symp toms and alarming character, which is generally regarded as affecting the general health and as threatening the continuance of life, must be disclosed. Barteau v. Phonix Ins. Co., 67 Barb. (N. Y.) 260 ; S. C., 67 N. Y. (22 Sick.) 595. Where the applicant stated that he was not aware of any disorder or circumstance tending to shorten life, it is not enough that physicians differed about the effect of a sickness which he had had, if he honestly believed his answer to be true. Jones v. Provincial Ins. Co., 3 C. B. (N. S.) 65. Where the applicant was required to name the physician usually employed by him, and answered "none," when in truth he had occasionally consulted a physician about a longstanding cough, and had been rejected by the examining physician of another company, the policy was held void for concealment. Horn v. Amicable Ins. Co., 64 Barb. (N. Y.) 81. A failure to state facts known to the insurer, or which he ought to have known, or which are rather for his benefit than his injury, is no concealment. If the insurer puts interrogatories on certain points, he thereby raises a presumption that he does not care for information on related points. A general statement, sufficient to put the insurers upon inquiry, if they desire fuller details,

ton v.

is enough. Where the question put calls only for an expression of opinion, it is enough if it is honestly answered. Hogle v. Guardian Ins. Co., 6 Robt. (N. Y.) 567; 4 Abb. (N. S.) 346. An answer may be true and yet not the whole truth, and so be a concealment, as where the insured states that he has been sick one week, when he has been sick a month, or that he has had a physician once, when he has had one several times (Cazenove v. British Equitable Assoc., 6 C. B. [N. S.] 437); or, where he states that his employment is of one nature, and he omits to mention another more hazardous occupation in which he is engaged (Perrins v. Mar. Trav. Ins. Co., 2 El. & El. 317; Hartman v. Keystone Ins. Co., 21 Penn. St. 466); or, where, having more than one medical attendant, he names only one, and that the one least able to give information. Morrison v. Muspralt, 4 Bing. 60; HutWaterloo Ass. Soc., 1 F. & F. 735; Monk v. Union Ins. Co., 6 Robt. (N. Y.) 455. So, if he returns an evasive answer by referring to the surgeon's report, when he is well informed as to all the matters inquired about. Smith v. Etna Ins. Co., 49 N. Y. (4 Sick.) 211. A misstatement or concealment by an agent of the insured is equally as fatal as if made by the insured himself. Where reference is made to any person as a source of information, he is not the agent of the insured, and he is not held responsible for the accuracy of his answers, if the misrepresentations or concealments are without his knowledge or consent. Wheelton v. Hardisty, 8 El. & Bl. 232; Rawls v. American Ins. Co., 36 Barb. (N. Y.) 357; S. C., 27 N. Y. (13 Smith) 282. The materiality of the following matters was submitted to the jury that the insured was in prison at the stated place of residence (Huguenin v. Rayley, 6 Taunt. 186); that he had been insane twenty years before (Mallory v. Travelers' Ins. Co., 47 N. Y. [2 Sick.] 52; 7 Am. Rep. 410); or that the insured; a single woman, had had a child a year or two before (Edwards v. Barrow, Ellis on Ins. 116); or statements of his pecuniary situation made to the medical examiner and bearing on the care he was likely to receive. Hogle v. Guardian Ins. Co., 4 Abb. Pr. Cas. (N. S.) 346; 6 Rob. 567.

§ 6. Health, habits, suicide. As the rate of premium must be fixed by a calculation of the probable length of life, it is necessary that the insurer should be fully informed upon all matters which make the case of the applicant an exceptional one. The standard applications and policies are usually very guarded upon all these points. It is held that a warranty of health, or of good health, simply means that the applicant is in a reasonably good state of health, and such a life as ought to be insured at the common rates. He need not be free from every infirmity. Peacock v. N. Y. Ins. Co., 20 N. Y. (6 Smith) 293; VOL. IV.-13

Life Ins. Co. v. Francisco, 17 Wall. (U. S.) 672; Higbee v. Guardian Ins. Co., 53 N. Y. (8 Sick.) 603. It was no breach that he had received a wound which so affected him that he could not retain his urine or fæces (Ross v. Bradshaw, 1 Wm. Bl. 312) or that he had violent attacks of the gout. Willis v. Poole, 2 Parke on Ins. 650. A warranty that the applicant was free from any disease tending to shorten life, was construed to apply only to diseases of a serious nature, and which have a continuing tendency to produce death. Where the disorder was uncertain in its nature, and might proceed either from a defect of the internal organs, or from dyspepsia, it was left to the jury. Rose v. Star Ins. Co., 2 Ir. Jur. (O. S.) 206; Barteau v. Phonix Ins. Co., 67 Barb. (N. Y.) 354 ; 67 N. Y. (22 Sick) 595. Good health means apparent good health, without any known or felt symptoms of sickness (Hutchinson v. Nat. Loan Ass. Soc., 7 Ct. Sess. [Sc.] 2d Ser. 467; Horn v. Amicable Ins. Co., 64 Barb. [N. Y.] 81) and is for the jury. Boos v. World Ins. Co., 64 N. Y. (19 Sick.) 236. That death ensues from some slight indisposition existing at the time of insurance, does not prove that the insured was not in good health. Watson v. Mainwaring, 4 Taunt. 763; Eclectic Ins. Co. v. Fahrenkrug, 68 Ill. 468. Predisposition to a disease of such a character, and to such a degree as to seriously affect the health, is inconsistent with good health. N. Y. Ins. Co. v. Flack, 3 Md. 341. If on full information the insurers would charge beyond the ordinary premium, the life cannot be classed as a healthy one. Brealey v. Collins, 1 You. 317; Ross v. Bradshaw, 1 Wm. Bl. 312; Smith v. Etna Ins. Co., 49 N. Y. (4 Sick.) 211. Inquiries as to whether the insured has had any serious disease, or disease which would tend to shorten life, relate to matters which even among experts are matters of opinion, and in the case of the insured must be wholly so, and are therefore held only to call for his honest opinion, and if he gives that, it is enough. Hogle v. Guardian Ins. Co., 6 Robt. (N. Y.) 567; 4 Abb. (N. S.) 346; Jones v. Provincial Ins. Co., 3 C. B. (N. S.) 65. So where the inquiry is whether the applicant has been afflicted with any particular disease or symptom of disease. Where the inquiry is whether the applicant is afflicted with or subject to fits, it means not that he has never had a fit accidentally, but that he is not a person habitually afflicted or liable to fits. Chattock v. Shaw, 1 Mood. & Rob. 498. So of a question as to gout; the applicant must have had it in some sensible appreciable form so that he knew what it was. Fowkes v. Manchester Ins. Co., 3 F. & F. 440. Where the questions related to the spitting of blood, or bronchitis, it was left to the jury whether the symptoms were so recent or severe as to call for mention. (Campbell v. N. E. Ins. Co., 98 Mass. 381); but in a clear

case the court may decide it. Vose v. Eagle Ins. Co., 6 Cush. (Mass.) 42; Geach v. Ingall, 14 Mees. & W. 95; Mutual Benefit Ins. Co. v. Miller, 39 Ind. 475. Where the question was whether the spitting of blood came from the lungs, or the stomach, it was left to the jury. Fried v. Royal Ins. Co., 47 Barb. (N. Y.) 127; S. C., 50 N.Y. (5 Sick.) 243. Any concealment with regard to medical attendants, if inquired about, is fatal. Horn v. Amicable Ins. Co., 64 Barb. (N. Y.) 81. That the insured was soon after stricken with disease does not prove that he was not in good health when the insurance was effected. Eclectic Ins. Co. v. Fahrenkrug, 68 Ill. 468. Fainting fits are not epileptic or other fits. Shilling v. Accidental Death Ins. Co., 1 F. & F. 116. A disease requiring confinement seems to be one where a physician is necessary. Cazenove v. Brit. Eq. Ass. Co., 6 C. B. (N. S.) 437. A warranty that the applicant is of sober and temperate habits, means that he has been a temperate man for a sufficient time to constitute a habit. It is not necessary that his indulgence should be such as to injure his health. It is enough if he is not of habitual sobriety. Southcombe v. Merriman, 1 Carr. & Marsh, 286. The insurers have a right to know that he has lately had delirium tremens and has been under medical treatment in consequence of excessive drinking. Hutton v. Waterloo Life Ass. Soc., 1 F. & F. 735. The use of drugs or spirits to such an amount as to endanger health ought to be disclosed, where the insurers inquire as to his health. Forbes v. Edinburg Ass. Co., 10 Ct. Sess. (Sc.) 1st Ser. 451. Addicted to the excessive use of intoxicating liquor, means an habitual excessive use. Mowry v. Home Ins. Co., 9 R. I. 346. Habits of intemperance acquired after the completion of the contract, will not avoid the policy unless they are warranted against. Reichard v. Manhattan Ins. Co., 31 Mo. 518; Herton v. Equitable Ass. Soc., 2 Big. Life & Ac. Reps. 108. A man cannot be said to have been always of temperate habits, who, though usually so, occasionally indulges in debauches, which sometimes bring on delirium tremens. Mutual Ben. Ins. Co. v. Hotterhoff, 2 Cir. L. C. Rep. (Ohio) 379. But occasional moderate indulgence is not a violation of the warranty.. Swick v. Home Ins. Co., 1 Ins. L. J. 415 ; 2 Dill. (U. S.) 160. If a death, "by reason of intemperance," is not covered by the policy, it must appear that intemperance was the proximate cause of death. If it is only a contributing cause, as where it may have, in some degree, affected the power of the insured to resist disease, it is not enough. Miller v. Mut. Benefit Ins. Co., 31 Iowa, 216; 7 Am. Rep. 122. If the disease of which the insured died is caused directly by intoxication, as delirium tremens, it does not change the case that it was aggravated by exposure or improper treatment, and

might not otherwise have been fatal. Ranney v. Mut. Benefit Ins. Co., U.S. C. C. 1st Cir. 1873. A misrepresentation as to the applicant's age is fatal. Cazenove v. British Eq. Ass. Co., 6 C. B. (N. S.) 437; Murphy v. Harris, Batty (Irish), 206. A party's occupation should be truly stated. Hartman v. Keystone Ins. Co., 21 Penn. St. 466; Perrins v. Mar. & Gen. Tr. Ins. Co., 2 El. & El. 317. It is common to provide that the insurer shall not be liable where the insured shall die by his own hands, or take his own life. On this provision the question has arisen whether the clause applies where the insured was insane at the time of the act. In Breasted v. Farmers' Loan & Trust Co., 4 Hill (N. Y.), 73; S. C., 8 N. Y. 299, it was held that the words in this connection implied a criminal act done with a consciousness of its nature. In Dean v. American Ins. Co., 4 Allen (Mass.), 96, it was held that insanity was immaterial and the ordinary sense of the words must be followed, and that a voluntary self-destruction where the party was able to intend the result reached avoided the policy. Borradaile v. Hunter, 5 Man. & Gr. 639; Schwabe v. Clift, 2 Car. & K. 134; S. C., 3 Man. & Gr. 437; Dufaur v. Professional Ass. Co., 25 Beav. 602; Nimick v. Mut. Benefit Ins. Co., 3 Brew. (U. S.) 502; 10 Am. Law Reg. (N. S.) 81; St. Louis Ins. Co. v. Graves, 6 Bush (Ky.), 268; White v. British Empire Ass. Co., 7 L. R. Eq. 394; Cooper v. Mass. Ins. Co., 102 Mass. 227; 3 Am. Rep. 451; Mallory v. Travelers Ins. Co., 47 N. Y. (2 Sick.) 52; 7 Am. Rep. 410. In Gay v. Union Ins. Co., 9 Blatchf. (C. C.) 142, it was held immaterial whether the insured could understand the moral aspects of his act. Inderry v. Life Ins. Co., 1 Dill. (C. C.) 403; S. C., 15 Wall. 580. It was held that to render the company liable, the insured must be unable to use a reasonable judgment as to the act. Eastabrook v. Union Ins. Co., 54 Me. 224; Van Zandt v. Mut. Benefit Ins. Co., 55 N. Y. (10 Sick.) 169; 14 Am. Rep. 215; Phillips v. La. Equitable Ins. Co., 26 La. Ann. 404; 21 Am. Rep. 549; Pierce v. Travelers' Ins. Co., 34 Wis. 389; Knickerbocker Ins. Co. v. Peters, 42 Md. 414; Hathaway v. Nat. Ins. Co., 48 Vt. 335. In order to avoid this question the insurers have sometimes added the words "sane or insane" and they constitute a valid limitation. Chapman v. Republic Ins. Co., 6 Biss. (C. C.) 238; De Gogorza v. Knickerbocker Ins. Co., 65 N. Y. (20 Sick.) 232. But in the latter case it was held that these words only made the policy void where the act was intended, and that if there was no intention to take life, the insured did not, in the sense which should be put upon these words, die by his own hand. If the policy contains no provisions of this sort, death by suicide does not avoid it. Horn v. Anglo-Australian Ins. Co., 7 Jur.

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