had any of the list of diseases enumerated in the application.1

§ 174. Statements as to Medical Attendance.— If the applicant names a doctor as his attending physician, this may not avoid the policy although the physician is not the usual medical attendant, for the statement may still be true.?

And the question as to the truth of the statement in regard to the medical attendant or usual medical attendant or family physician, if the testimony is in doubt, is for the jury.3

But medical consultation or treatment means for the purpose of procuring or furnishing medical aid, and not necessarily for a specific disease; and giving medicine by a physician to relieve suffering is prescribing medicine within the meaning of an application.*

And if on the undisputed testimony the answer is untrue, the court must dismiss the complaint."

In one case the question was, " Name and residence of family physician?" and the answer was, "Refer to Doctor Corning." The proofs showed that Doctor Corning was not the physician of the insured, but the court held that upon this ambiguous form of response it was proper to leave the question of forfeiture to the jury.

The insured stated in the application that he had had no medical attendance within the year. A physician testified that he had attended him and prescribed for him within that time in the presence of certain members of the family, who testified that they had no recollection of it. Held, that the question of breach was for the jury.?

$ 175. Statements as to Other Insurance.-Inquiry is sometimes made in the application upon this point, and

1 Knickerbocker Life Ins. Co. v. Trefz, 104 U. S. 197.

2 Cushman v. U. S. Life Ins. Co., 70 N. Y. 72.

Gibson v. Amer. Mut. L. Ins. Co., 37 N. Y. 580. O'Hara v. U. B. Mut. Aid Soc., 134 Pa. St., 417. Edington v. Mutual Life Ins. Co., 67 N. Y. 185. Huckman v. Fernie, 3 M. & W. 505.

4 Cobb v. Covenant Mutual Benefit Assn., 153 Mass. 176 (1891).

5

Phillips v. New York Life, 9 N. Y. Suppl. 839.

Higgins v. Phoenix Mut. Life Ins. Co., 74 N. Y. 6.

O'Hara v. United Brethren Mutual Aid Society, 134 Pa. State, 417.

it is a matter of special importance to the company where the character or financial condition of the applicant is suspected. A deceptive or misleading disclosure or concealment upon this subject will be fatal.1

§ 176. Statements as to Age.-The rate of premium being based upon the age of the insured, it is quite material that the response to this question should be correct.

The policy was held void where the applicant erroneously represented his age to be fifty-nine instead of sixty-four.2 And where the true age was thirty-five and the application represented it to be thirty, it was held to be a material variation.3

But this requirement, like all others, may be waived, or the company may be estopped from taking advantage of the mis.. take.1

§ 177. Statements as to Family Relationship.— The untrue statement of the applicant that he was a widower was held to be fatal to a recovery under a policy."

A breach of the warranty that the insured was a single man, when in reality a married man, forfeited the policy, although the risk was not thereby increased."

But the erroneous statement by the applicant that the person named in the policy as beneficiary was a cousin of the applicant, was considered too trivial to vitiate the contract.?

§ 178. Habits.-The statement that the applicant is of temperate habits does not mean that he totally abstains from drinking wines or liquors.

Etna Life Ins. Co. v. France, 91 J. Equity, 102. U. S. 510.

Van Valkenburgh v. Amer. Popu

'Miller v. Phoenix Mut. Life Ins. lar Life Ins. Co., 70 N. Y. 605.

A statement of habits is of a fact, and not of an opinion.1 In any case of doubt, the question of habits must go to the jury.2

And the United States Supreme Court, with what would seem to be an over-indulgence to the insured, expressed the opinion that a man might have the delirium tremens once, without necessarily violating this warranty. The English court thought this was too liberal.*

$179. Statements as to Occupation.-Where the applicant warranted that he was a soda-water maker, and was, in fact, a soda-water seller, it was held to be no breach of warranty. But the statement being a warranty, it must be in effect true, or the policy will be avoided."

§ 180. Statements or Requirements as to Residence and Travel.-If these are restrictions contained in the policy, they must be complied with; and if statements in the application, they must be true.

The settled limits of the United States, means within the bounds of the Union, and not the portions of the country that are thickly settled.8

If a permit is given to travel by a particular route or to remain in a hazardous region for a particular time, the limitation must be strictly obeyed. An inability to return will be no excuse. 10 And a subsequent receipt of the money by the company, without knowledge of the forfeiture, will not revive the policy."

'Thomson v. Weems, 9 App. Cas. Co., 80 N. Y. 292; s. c., 36 Am. Rep.

686.

617. Kenyon v. Knights Templar & M. Mut. Aid Assoc., 122 N. Y. 247.

? Meacham v. N. Y. State Mut. Ben. Assoc., 120 N. Y. 237. Pelton v. Westchester Fire Ins. Co., 77 N. Y. 605. Etna Life Ins. Co. v. Davey, 123 U. S. 739. Northwestern Life Ins. Co. v. Muskegon Bank, 122 U. S. 501. Miller v. Mutual Ben. Ins. Co., 34 Iowa, 222. Insurance Co. v. Foley, 105 U. S. Ins. Co., 11 Cush. 448.

Dwight v. Germania Life Ins. Co., 103 N. Y. 341.

'Nightingale v. State Mut. Life Ins. Co., 5 R. I. 38.

350.

686.

Casler v. Conn. Mut. Life Ins. Co., 22 N. Y. 427.

"Hathaway v. Trenton Mut. L. & F.

10 Evans v. U. S. Life Ins. Co., 64

Thomson v. Weems, 9 App. Cas. N. Y. 304.

11 Bennecke v. Insurance Co., 105

'Grattan v. Metropolitan Life Ins. U. S. 355.

But the company or its representative may waive the requirements of the policy.1

Where an English policy required notice to the directors, and written consent to visit a foreign country, it was held that notice under the policy to an agent of the company was sufficient, where the agent, for several years afterwards, collected the premiums and remitted them to the company, although he had not express authority to waive the contract conditions.2

§ 181. Statements about Bodily Injuries.—The rule of construction is very similar to that applicable to statements concerning health. A temporary or trivial injury, of which no permanent effects remain, is not a serious personal injury, and what is serious under the testimony of most cases would be made a question for the jury.3

A cut from which a little blood flows, is not a hurt or a wound.1

And the omission to recollect a temporary injury to an eye, caused by sand which was thrown into it and inflamed it, was not considered necessarily fatal to the policy where the applicant had answered in the negative the question whether he had ever had any illness, local disease, or injury in any organ.5

1 Bevin v. Conn. Mut. Life Ins. Co., 23 Conn. 244.

2 Wing v. Harvey, 5 DeG. M. & G. 265.

' Ins. Co. v. Wilkinson, 13 Wall. 222.

Bancroft v. Home Ben. Assoc., 120 N. Y. 14.

5 Fitch v. Amer. Popular Life Ins. Co., 59 N. Y. 557.

CHAPTER XVII.

LIFE POLICY-CONTINUED.

§ 182. Payment of Premiums.-The policy to cease unless premiums paid, when due, at the home office, and upon production of receipts signed by president or treasurer, and policy not to take effect until first premium actually paid.

The payment of the premium is of the essence of the contract, and, in fact, constitutes all that the company receives under the contract, and a failure to pay on or before the days named will avoid the policy unless the company is in some way responsible for the omission, or waives it.1 Punctuality in payment is essential.2

So, also, if the premium is paid by a note, and the policy provides for forfeiture upon non-payment of the note, no relief can be granted in case of breach.3

A local agent has no authority, simply by virtue of his position, to receive anything but cash. But if he is intrusted with the closing of the contract by delivering the policy, according to the better opinion he has an implied authority to decide how the premium then due may be paid.5

This authority to waive contract provisions as to the method of paying the first premium does not extend to subsequent premiums, except as the plaintiff can show authority in the agent emanating from the insurers, either express instructions, or a known practice of the agent sanctioned by the company.

88.

1 Klein v. Ins. Co., 104 U. S. Y. St. Rep. 573. Acey v. Fernie, 7 M. & W. 151.

Holly v. Metrop. Life Ins. Co., 105

N. Y. 437.

"Critchett v. Am. Ins. Co., 53 Iowa 404; s.c., 36 Am. Rep. 230. Boehen v. 'Knickerbocker Life Ins. Co. v. Williamsburgh Ins. Co., 35 N. Y. 131. Pendleton, 112 U. S. 696. McAllister v. New Eng. Mut. Life

Raub v. N. Y. Life Ins. Co., 14 N. Ins. Co., 101 Mass. 558.