BROWN, J., dissenting; WALKER, J., concurring in dissent. This is an action to recover on a health insurance policy which contained promised indemnity for partial disability; (226) confinement to the house, accompanied by disability, and confinement in a hospital, accompanied by disability. Each of these was at a different rate, and the claims made under the three classes of indemnity aggregated $382.14.
The defense was that the insured had a disease at the time of application which he did not disclose; and that the defendant was not liable under the indemnity either for confinement at the house or confinement in the hospital, for that it was not such as entitled the plaintiff to indemnity therefor, but only to partial indemnity.
The exceptions, seventeen in number, may be grouped under two heads; those which relate to the refusal of the motion to nonsuit and those which relate to the construction of the words, "within a house" and "within a hospital." As to the first exception, the plaintiff had, as it appears, at the time of the application, a slight attack of hernia. He was not asked if he had that disease. If so, his answer in the negative would have violated the contract, because the defendant company had a right to make any disease material, and if the defendant had answered untruly this would have been a misrepresentation. The statement in the application on which the defendant relies is the following: "I have never had fits or disorders of the brain. My habits of life are correct and temperate, and I am in sound condition, mentally and physically, except as follows: No exceptions."
Few people are absolutely exempt from some variation from a perfect condition, and unless such variation is specifically asked about in the application and denied, it is not matter vitiating the policy, unless the variation was serious enough to affect his "soundness" so that any one who knew the facts would say, "He is not a sound man."
The plaintiff testified that he had hernia, but that he did not suffer from it at all. Dr. Perry testified as an expert that he had examined the plaintiff two years later, in August, 1914; that he then made a physical *Page 277 examination of the plaintiff for life insurance; that he examined the indications of hernia and recommended the plaintiff for insurance in another company as a sound man. He further testified: "I was of the opinion that he was a sound man. . . . I would not think that the hernia would affect Mr. Hines' health to any degree." Hernia, sometimes, is a most serious defect, making the sufferer an unsound man. In other cases it is simply a slight imperfection which would not render him unsound in any respect, according to the testimony in this case. Therefore the court properly submitted to the jury the issue whether the defendant's answer, as above set out, was false or not, or whether at the time he made the application he was, in the ordinary acceptation of the words, "a sound man." It is not every ailment or indisposition or imperfection that makes one an unsound man. There must be (227) such a condition that there is a material departure from a sound condition. The issue was left fully and fairly to the jury as an issue of fact, and they found with the plaintiff.
The defendant has not contended that the plaintiff's representations were fraudulently made, but insists that the insurer should not be the judge of the materiality of such representations; but neither could the defendant be sole judge. The question is not whether the plaintiff had hernia, for this is not denied, but whether it was of such nature as to have rendered him an unsound man at the time of the application. The jury is the only tribunal which can settle the disputed facts, for this is an issue of fact and not a matter of law. The illness from which the plaintiff suffered subsequently, and for which he seeks to recover was an attack of rheumatism, which had no connection with, nor was there any evidence to show that it was in any way traceable to, hernia.
Revisal, 4808, provides that all statements in an application for insurance shall be held merely representations, and not warranties; and that no representations, unless fraudulent or materially affecting a risk, shall prevent a recovery. This matter was properly submitted to the jury, and they found that "the plaintiff was of sound physical condition at the time he signed the application, notwithstanding such hernia; and that his representations at the time he applied for the policy were not false and were not material to the defendant in determining whether it would issue the policy." The court instructed the jury that whether he was in sound health or not was a matter for the jury to determine upon the evidence, depending upon whether the extent of the hernia he had was such as to render him unsound or not.
The second proposition involved is whether the plaintiff has brought his case, upon the evidence, within the conditions which entitle him to recover because "confined within a house or within a hospital." The court instructed the jury that the words "confined in his home" do not *Page 278 mean that he must be actually confined within the four walls of his house, but it means that he was entitled to indemnity while kept in his home on account of sickness and unable to leave for any purpose not connected with his sickness. If during such illness he was able to visit friends, or his place of business, he would not have been "confined." But if, acting under the directions of the physician, he called at his doctor's office, or the mere fact that he walked out under his directions, as a part of the treatment the physician was giving him, this would not require the jury to find that he was not confined in his home.
The court also instructed the jury that within the meaning of this policy a man would be "confined within a hospital" during such time (228) as he was therein and subject to its rules and regulations, although at times walking or driving in the grounds of the hospital, or even outside the grounds, provided such walking or driving was taken under the rules and regulations of the hospital physician as a part of the treatment; but if during that time the plaintiff was able to leave the hospital or left it for social purposes, or for business reasons, then he would not have been "confined" within the meaning of the policy.
The court instructed the jury that the burden was on the plaintiff to satisfy them by the greater weight of the evidence that, notwithstanding the hernia, he was not suffering therefrom at the time of the application for the policy, and was in fact a sound man at that time; and, also, that the burden was upon the plaintiff to satisfy the jury that he was confined in his home and in the hospital in the manner already charged, and the burden was upon him to show the length of time; that the burden was upon the defendant to satisfy the jury that from the nature of the hernia it would have prevented it from issuing the policy if it had been informed thereof.
The charge is very full, and the jury must have understood the matters of fact left to them. We find no error of law committed during the trial.
No error.