Dyspepsia is a very common disease, and is always inquired about. Undoubtedly it sometimes kills, but generally it does not. But whether it has a tendency to shorten life, or whether in any particular case it did shorten life, it might be very difficult to say. In an English case, the court said: "If dyspepsia were a disorder which tended to shorten life within this exception (good health), the lives of half the members of the profession would be uninsurable." (k) This would probably be as true in this country as in

(h) Willis v. Poole, Park, Ins. 585, Mann. Ins. 771.

(i) Aveson v. Kinnaird, 6 East, 188; Boas v. Bradshaw, 1 W. Bl. 313. In Jones v. Provincial Ins. Co. 3 C. B. (N. S.) 65, the life-insured stated, that he ordinarily enjoyed good health, and that he was not aware of any disorder or circumstance tending to shorten his life, or to render an insurance on his life more than usually hazardous. It appeared, that during the two preceding years the person had had two severe bilious attacks; and that medical men had expressed different opinions as to the effect of these attacks upon his health, but it did not appear that the unfavorable opinions had ever been communicated to him. The jury were instructed that "if the assured honestly believed, at the time he made the declaration that the bilious attacks had no effect upon his health, and did not tend to shorten his life, or to render an insurance upon it more than usually hazardous, the fact that he was aware that he had had those attacks, even though without his knowledge they had such a tendency, would not defeat the policy." These directions were held to be correct.

(j) See note infra.

(k) In Watson v. Mainwaring, 4 Taunt. 763, Chambre, J., said: "All disorders have more or less a tendency to shorten life, even the most trifling; as, for instance, corns may end in a mortification; that is not the meaning of the clause; if

1 In Cushman v. United States Ins. Co. 70 N. Y. 72, it was stated that a temporary ailment cannot be considered a disease within the meaning of a warranty against disease in a life insurance policy, unless it be such as to indicate a vice in the constitution, or so serious as to have some bearing upon the general health and the continuance of life, or such as, according to common understanding, would be called a disease. See also Illinois, etc. Soc. v. Winthrop, 85 Ill. 537.

2 That good health may include malarial diseases, see Holloman v. Life Ins. Co. 1 Woods, 674.

England; but an American court has said: "We cannot see how a person can be sound and healthy who is predisposed to dyspepsia to such a degree as to produce bodily infirmity." (l) l We, however, cannot see that any degree of dyspepsia is not in that degree a bodily infirmity.

A strong case occurred in England, in which the insured was afflicted at times with cramps and spasms, and violent fits of the gout, but was, when the policy was made, in as good health as he had been in for a long time before. A verdict against the insurers was sustained. But in that case the insurers were told, when making the insurance, that the insured was subject to gout. (m)

Consumption is more frequently than any other one disease the cause of death, both in England and in this country; and insurers always make numerous and specific inquiries respecting any tendency to it. A question is always asked, whether there has been any spitting of blood or cough. It would be absurd to answer any such questions by a general negative, or to construe such a negative literally. Probably no person ever reached adult age, without at some time spitting blood from the drawing of a tooth, or a slight wound in the mouth. The question, therefore, must mean, whether these symptoms have ever appeared in such a way, or under such circumstances, as to indicate a disease which would have a tendency to shorten life; and it is with this meaning that the question is left to the jury. It is, however, undoubtedly true, that any such symptom, unless it were certainly of no consequence, should be stated. (n) We have known a case dyspepsia were a disorder that tended to shorten life within this exception, the lives of half the members of the profession would be uninsurable." In this case the jury had found that the dyspepsia was neither organic nor excessive, and the court refused to set aside the verdict for the plaintiff.

(l) N. Y. Life Ins. Co. v. Flack, 3 Md. 366.

(m) Lord Mansfield said: "The imperfection of language is such that we have not words for every different idea; and the real intention of parties must be found out by the subject-matter. By the present policy, the life is warranted, to some of the underwriters, in health, to others in good health; and yet there was no difference intended in point of fact Such a warranty can never mean that a man had not the seeds of disorder. We are all born with the seeds of mortality in us. A man, subject to the gout, is a life capable of being insured, if he has no sickness at the time to make it an unequal contract." Willis v. Poole, Park, Ins. 585, Marsh. Ins. 771.

(n) In Vose v. Eagle Ins. Co. 6 Cush. 42, an applicant for life insurance answered an interrogatory, whether he had ever been afflicted with a pulmonary disease, in the negative; and in answer to an

1 World Ins. Co. v. Schultz, 73 Ill. 586, was to the effect that the fact that the assured within a year had the dyspepsia while ill from an abscess is not conclusive of a breach of warranty that he was not "subject to dyspepsia." where * the life-insured was asked whether he had ever had consumption, and replied that he had not. Some years interrogatory, whether he was then afflicted with any disease or disorder, and what, stated, that he could not say whether he was afflicted with any disease or disorder, but that he was troubled with a general debility of the system; and it was proved that the applicant was then in a consumption, the symptoms of which had begun to develop themselves five months before, and were known to him; but were not disclosed to the insurers, although sufficient to induce a reasonable belief on the part of the applicant that he had such a disease. It was held, that whether these statements amounted to a warranty or not, they were so materially untrue as to avoid the policy, although the insured, at the time of his application, did not believe that he had any pulmonary disease, and the statement made by him was not intentionally false, but, according to his belief, true. According to the opinion delivered in the case, the proposal or declaration, when forming a part of the policy, amounts to a condition or warranty which must be strictly complied with, and upon the truth of which, whether a misstatement be intentional or not, the whole instrument depends; where there is no warranty, an untrue allegation of a material fact, or the concealment of a material fact when a general question is put by the insurers at the time of effecting the policy, which would elicit it, will vitiate the policy, although such allegation or concealment be the result of accident or negligence, and not of design. This case also decides, that the fact that the agent for receiving the application and forwarding it to the directors of the company at their place of business, by whom the contract and policy are made and signed on the basis of the application, had reasonable cause to believe that the party was laboring under a pulmonary disease, does not cure the effect of the untrue statement. In Geach v. Ingall, 14 M. & W. 95, the lifeassured stated, in his declaration, that he was at that time in good health, and not afflicted with any disorder, nor addicted to any habit tending to shorten life; that he had not at any time had, among other things, any spitting of blood, consumptive symptoms, asthma, cough, or other affection of the lungs. One of the terms of the policy was, that it should be void if anything stated by the assured in the declaration should be untrue. The defendants' witnesses proved, that, about four years before the policy was effected, the assured had spit blood, and had subsequently exhibited other symptoms usual in consumptive subjects; and it appeared that he died of consumption in the year 1843. The Lord Chief Justice told the jury, that it was for them to say whether, at the time of his making the statement set forth in the declaration, the assured had such a spitting of blood, and such affection of the lungs and inflammatory cough, and such a disorder, as would have a tendency to shorten his life. This was held a misdirection; for, although the mere fact of the assured having spit blood would not vitiate the policy, the assured was bound to have stated that fact to the insurance company in order that they might make the inquiry whether it was the result of the disease called spitting of blood, Alderson, B.: "Then as to the misdirection, my Lord Denman certainly does not appear to have sufficiently called the attention of the jury to the distinction between those disorders, respecting the existence of which, at the time of executing the policy, the assured was called on to make a specific declaration, and those which might have formerly existed. By 'spitting of blood' must, no doubt, be understood a spitting of blood as a symptom tending to shorten life; the mere fact is nothing. A man cannot have a tooth pulled out without spitting blood. But, on the other hand, if a person has an habitual spitting of blood, although he cannot fix the particular part of his frame whence it proceeds, still, as this shows a weakness of some organ which contains blood, he ought to communicate the fact to the insurance company; for no one can doubt that it would most materially assist them in deciding whether they should execute the policy; and good faith ought to be kept with them. So, if he had had spitting of blood only once, but that once was the result of the disease called spitting of blood, he ought to state it, and his not doing so would probably avoid the policy. Again, suppose this man had an inflammation of the lungs, which had been cured by bleeding, many physicians would perhaps say, that it was an inflammation of the lungs of so mitigated a nature as not to tend to shorten life; still that would be no answer to the case of the defendants, for it is clear that the company intended that the fact should be mentioned. As to the word 'cough,' it must be understood as a cough proceeding from the lungs, or no one could ever insure his life at all; and indeed it is so expressed in the policy, - 'Cough, or other affechad been very weak and ill, and that a physician who attended him believed he had consumption. But another physician, who was also consulted by the patient, believed that he had not this disease; and he appeared and was thought to have recovered his health perfectly. In his answers, the life-insured gave no statement respecting this disease. The jury found for the plaintiff, and their verdict was not disturbed. It is impossible to understand the law as it * is applicable to this interesting question, except from the adjudged cases; and we give copious extracts from them in the notes.