
    GREAT EASTERN CASUALTY CO. v. SMITH.
    (No. 1433.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 4, 1915.)
    1. Insueancb <&wkey;291 — Application — Construction.
    In determining the question of falsity, the questions and answers in the application for insurance ought to be construed liberally in favor of the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-699, 694-696; Dec. Dig. &wkey; 291.]
    2. Insurance c&wkey;291 — -'Warranty—Health-
    Breach— “Whole” — “Sound” — “Condition.”
    A warranty in an insurance application that applicant was in whole and sound condition, mentally and physically, is not breached by failure to state that he had a leg amputated at the knee, since “whole” means hale, hearty, strong, sound, and also entire, complete, and “sound” means hearty, not diseased, and also whole, unimpaired, and “condition” means state or situation as regards internal or external circumstance or plight, and that construction most favorable to assured will be taken.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. <S=> 291.
    For other definitions, see Words and Phrases, First and Second Series, Condition; Sound.]
    Appeal from Harrison County. Court; Geo. L. Huffman, Judge.'
    Action by Louis Smith against the Great Eastern Casualty Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The action is by appellee on a policy of Insurance, providing, as sued for, weekly indemnity for loss of time through disablement resulting while traveling as a passenger within any common carrier’s conveyance. After the issuance and delivery of the policy the insured sustained bodily injuries while traveling as a passenger on a railway passenger train, and was wholly disabled from attending to any kind of business for more than 10 weeks continuously. Appellee sues for the 10 weeks’ loss of time at the stipulated amount of $25 per week, and for the statutory damages and attorney’s fees for failure to pay the claim within 30 days after the demand therefor. Appellant pleaded, in avoidance of the policy, that a false statement as to his physical condition was made by the insured in applying for the policy. The appellee replied that the appellant was estopped by the knowledge of its soliciting agent from asserting any forfeiture in respect to the answer if it were false. The court gave a peremptory instruction in favor of appellee, and refused to give one in favor of appellant, to each of which appellant seasonably excepted and assigns error. The facts are agreed to, and are admitted to be undisputed. The local agent of appellant solicited insurance from appellee, and the application blank was filled in by the agent, and appellee signed it. The application reads as follows:
    “I hereby apply for limited accident and sickness insurance in the Great Eastern Casualty Company to be based upon the following statement of facts which I warrant to be true and complete and binding upon me:
    “Policy No. C-153889. Form S-54. Key tag No. 56289. Date, 8/19/1913. (Policy in force one year from date.) Name, Louis Smith. Age, 39 years. Street and number, --■. City and state, Marshall, Texas. Beneficiary, Sarah Smith. Relationship, wife. Address, Marshall, Texas.
    “I have never had fits, diabetes, kidney disease, syphilis or any sickness or disorder of the brain, spine or nervous system, am in whole and sound condition mentally and physically, and have no other insurance in this company, except as herein stated.”
    At some previous time one of appellee’s legs had been amputated near the knee, and the agent knew of the fact that appellee was one-legged. The appellee says he asked the agent, when his application was solicited, if his being one-legged would affect the insurance, and was told it would not. The agent denies making the statement. After appel-lee signed the application the agent collected the premium, which was for a year, and forwarded the application to the home office of the company, which was there approved and the policy issued and mailed to the agent, who delivered it to appellee. The agent had authority to solicit the insurance and collect the premium, but had no authority to issue policies or to waive or change any provision of the policy. The policy recites that it is issued in consideration of and subject to the agreements and statements in the application, which are' made a part of the contract, and stipulates for forfeiture of policy for untruthfulness of warranties. There is agreement as to amount of attorney’s fees that would be reasonable, and that being one-legged may be regarded as being material to the risk of insurance.
    Beard & Davidson, of Marshall, for appellant. Bibb & Scott, of Marshall, for appel-lee.
   LEVY, J.

(after stating the facts as above).

In his application for the insurance the appellee answers:

“I have never bad fits, diabetes, kidney disease, syphilis or any sickness or disorder of the brain, spine or nervous system, am in whole and sound condition mentally and physically.”

The company defends upon the ground that there had been a breach of the warranties contained in the application and policy, in that by this answer the insured had represented himself as being “in whole and sound condition mentally and physically,” when in truth before and at the time of the application he was one-legged. The only proof or contention with respect to the state of health or "condition of the insured rests upon the bare fact that the insured at some previous time had a leg amputated at the knee, and as a consequence was “one-legged.” It Is concluded tliat the court did not err in directing a verdict for appellee. It is believed that from the fair interpretation and intendment of the language of the questions and answers, construed together, there is not shown the evident untruth or falsity, so as to avoid the policy, of the answers in the application. It is stated as a fair rule that in determining the question of falsity the questions and answers of the application ought to be construed liberally in favor of the insured. The language “in whole and sound condition mentally and physically” is capable of different meanings. The word “whole” is defined: “(1) Hale, hearty, strong, sound, well;” and “(4) entire, complete, without omission, reduction or diminution.” Century Dictionary and Cyclopedia, vol. X; Webster; Standard. The word “sound” is defined: “(1) Hearty, not diseased;” and “(2) whole, uninjured, unmutilated.” Id. The word “condition” is indefinite of application, and means “state or situation, as regards internal or external circumstances or plight.” Id. Therefore in one meaning the language could refer to a well and not diseased ■ state of mind and body apart from the bare fact of having one leg off, while in another meaning the language could refer and extend as well to health as to a whole body. As the answers run in the application there is ample room for the insured to have naturally understood that he was asked concerning diseases and ailments affecting his general soundness of health, and not specifically to the loss of a limb. And as he could reasonably and fairly have so construed the language, it is not thought that falsity of answer in avoidance of the policy could properly be predicated on the omission to specifically state the fact of the loss of a limb. This ruling is decisive of the appeal. 
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     