
    Rose Schmitt, Respondent, v. The Michigan Mutual Life Insurance Company, Appellant.
    
      Life insurance—a temporary ailment does not constitute a disease-—warrhnty against “chronic cough," etc., refers not to a temporary attack, but to a disease — . warranty as to the health of a brother of the assured relates to his appm'eni health.
    A temporary ailment does not constitute a disease within the meaning of a life insurance policy, unless it is such as to indicate a vice in the insured’s constitution or is so serious as to have some bearing on his general health or -his continuance of life, or is such as, according to common" understanding, would be called a disease.
    
    Where an application -for a policy of life insurance containsithe following question: “ Have you had any of the following diseases ?” “ Of each illness, state , date, number of attacks, "duration, severity, complications and results. * * * " . *' (4) Chronic or habitual cough or hoarseness, spitting or coughing of blood, asthma or shortness of breath, or any chest or lung disease ? (Yes or No)," and the applicant answers ‘.‘-no” to such question, such answer does not operate as a warranty to the effect that the applicant had never suffered temporarily from habitual cough or hoarseness or from the spitting or coughing of blood or from shortness df breath, but simply that he had never suffered from the “diseases” of which' these were the manifestations.
    Consequently, the fact that on the trial of an action brought to recover upon the policy of insurance issued on the faith of such application, evidence is given tending to show that the applicant had suffered from habitual cough or hoarseness and from the spitting or coughing of blood and from shortness of breath, does not establish a breach of warranty as matter of law, as the jury may fairly regard such evidence as insufficient to establish the existence of any disease or malady underlying these manifestations, so serious as to have any bearing upon the general health of the applicant or the continuance of his life.
    A warranty contained in an application for a policy of life insurance, to the effect that the health of the applicant’s elder brother was good, means simply that the elder brother had indicated in his action and appearance no symptoms or traces of disease, and that to the observation of an ordinary friend or relative he was in truth well.
    Appeal by the defendant, The Michigan Mutual Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of ;the county of Westchester on the 19tli day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      John N. Blair, for the appellant.
    
      Thomas Abbott McKennell, for the respondent.
   Willard Bartlett, J.:

The defendant contends that it ought to have prevailed upon the trial of this action, because it established four breaches of warranty contained in the application for insurance concerning thé health of the applicant, and one breach of warranty concerning the family record of the insured.

The application contained the following question :

“ Have you had any of the following diseases %
Of each illness, state date, number of attacks, duration, severity, complications and results. * * *
(4) Chronic or habitual cough or hoarseness, spitting or coughing of blood, asthma or shortness of breath, or any chest or lung disease ? (Yes or No).”

To this question the applicant answered No.”

The case was submitted to the jury on the assumption that the negative answer to tliis question constituted a material warranty, the breach of which would avoid the policy; and the defendant insists that the proof established such breach in that it showed that the ■ insured had suffered from, chronic or habitual cough and hoarseness and from spitting or coughing of blood and from shortness of breath- . and from a chest or lung disease. So far as the chest or lung disease was concerned, the defendant by its bill of particulars had limited ' the alleged breach to “ consumption, tuberculosis or phthisis.” The proposition that the insured had suffered from the. disease thus specified in the bill of particulars prior to his application for insurance was not sustained by the evidence. Nor Avere the other, alleged breaches. of warranty as to his1 own health so conclusively made out as to require the jury to find in the defendant’s favor on the issues which they presented. “ In construing a.policy of life insurance it must be generally true that before any temporary■ ailment can .be called a ' disease, if must be such as to indicate a vice in the constitution, or. be so serious as to have some bearing upon- general health, and the continuance of life, or such as according to common understanding would be called a disease.” (Cushman v. U. S Life Ins. Co., 70 N. Y. 72, and cases there cited.) It is to be observed that-the Avarranties under discussion Avere not to the effect that the applicant liad never suffered temporarily from habitual cough or hoarseness or from the spitting or coughing of blood .or from shortness of breath, but"that he had 'never suffered from “diseases” of which-these were the manifestations. The case in this respect is like Dreier v. Continental Life Ins. Co. (24 Fed. Rep. 670) where the alleged warranty consisted of a negative answer to the question whether the party “ had any of the following complaints,” and then specified “spitting or raising of blood” as one of them. There the-Circuit- Court of the United States held that there was no war-' ranty.“ that the insured, never had spitting or raising, of blood', but only that he had not had the complaint of spitting or raising blood; equivalent to a warranty that he had not had blood-spitting in such form as to-be called -a- disease, disorder, or constitutional vice.”

■I. think the evidence in the present case, while'tending'to shpw that the applicant had suffered from habitual cough or hoarseness - and from spitting or coughing of blood and from shortness of breath, might fairly be. vieAved by the jury as insufficient-to establish .the existence o.f any .disease or m'alady underlying these manifestations ■ so serious as to have. any bearing upon the. génefal health of the applicant, and-the continuance of his life, ..... ;

The alleged breach of warranty concerning the family record of the insured was based.upon a statement that the health of his elder brother was "good. A warranty of this kind means merely “ that the individual inquired about has indicated in his action and appearance no symptoms or traces of disease, and to the observation of an. ordinary friend or relative is in truth well.” (Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 275, 280.) Thus construed it is by no means clear that there was any breach in the case at bar of the warranty concerning the health of the applicant’s, brother. It is true that the mother of the insured gave testimony strongly tending to show that the brother was manifestly in poor health and known so to be by the insured; but the mother admitted her bias against the plaintiff, and in view of that fact the jury were not bound to accept her statements as true. Rejecting her testimony, the evi- - dence on this branch of the case was not such as to require a finding that this warranty had' been broken.

The rulings in the- exclusion and admission of evidence have been examined, without disclosing any error. The case appeal’s to have been carefully and most fairly tried, and was submitted to the jury in a charge to which the defendant took no exception. The verdict was neither against the evidence nor against the weight of evidence; and it follows that the judgment and order appealed from should be affirmed.

ITlRSCHBERG, P. J., WOODWARD, JeNKS and HOOKER, JJ., concurred.

Judgment and order affirmed, with costs.  