| Miss. | Oct 15, 1916
delivered the opinion of the court.
This is a companion case to the two cases hearing the same style decided two weeks ago by this division. 74 So. 114" court="Miss." date_filed="1916-10-15" href="https://app.midpage.ai/document/metropolitan-casualty-ins-v-cato-7992695?utm_source=webapp" opinion_id="7992695">74 So. 114, 118. This suit is for subsequent installments on the same insurance policy. For a history of the litigation reference is made to the opinion delivered in the first one of this series of cases. At the conclusion of the testimony a peremptory instruction was given in favor of the plaintiff for the amount sued for. In the suit at bar the insurance company filed the following special plea:
“And for the first special plea to the declaration comes the defendant, by its attorneys, and says that the plaintiff ought not to recover, for that the plaintiff, in his application for the policy sued upon, which application is copied into said policy, warranted that: 'I am sound and whole, mentally and physically. I.am neither lame, deaf, deformed, nor suffer any impairment of vision of either eye, nor have I ever been subject to fits, vertigo, somnambulism, or any chronic disease, except (no exception) ’ — but in truth and in fact the plaintiff at the time of making said application was not sound and whole, mentally and physically, but in fact and in truth then had a disease of the kidneys, which was well known to him. And defendant says that such warranty was material to the risk assumed by it, and that said risk would not have been assumed and said policy issued had it known of the said disease of the kidneys, and that this unsoundness and disease of the kidneys was unknown to this defendant until long after it had paid him two hundred and seventy-five dollars under said contract, and the amount so paid him is far in excess of all premiums paid by the plaintiff to the defendant for or on account of said policy sued*309 upon. Wherefore defendant says that, by reason of said false warranty, said policy is void, and that plaintiff ought to he barred; and this the defendant is ready to verify. ’ ’
As a second special plea it filed the following:
“Comes the defendant, by its attorneys, and for a further and second plea to the declaration filed herein against it says that the plaintiff ought not to recover, for that the plaintiff, in his application for the policy sued on, represented, which representation was a warranty, that, ‘My habits of life are correct and temperate,’ but defendant says that the habits of the plaintiff at the time of said application and said representation, were not correct and temperate, but, on the contrary, the plaintiff was then an habitual user of intoxicating liquor, .viz., whisky, and this was unknown to the defendant, and was material to the risk assumed by defendant, and had this defendant been apprised of the truth in regard to said representation it would not have assumed the risk and would not have issued said policy. Wherefore defendant says that, by reason of said false representation, said policy is void, and the plaintiff ought to be barred, and this the defendant is ready to verify.”
Demurrers were sustained to each of these pleas. So far as the second special plea is concerned, we think the court was correct in sustaining the demurrer to it. Mr. Cato may have been an habitual user of intoxicating liquor,' viz. whisky, and at the same time have been temperate in the use of same. The first special plea, however, is to the effect that in the written application Mr. Cato warranted that he was sound and whole, mentally and physically, when' as a matter of fact at the time of making this warranty he was not sound and whole, but had a disease of the kidneys, which fact was well known to him. It is the contention of the appellee that the demurrer was well taken because the appellee made no especial warranty that he
“The decisions seem to agree that the terms ‘sickness’ and ‘disease’ do not mean a trifling illness nor occasional physical disturbances resulting from accidental causes, and not permanent in their effects, nor a temporary illness which readily yields to professional treatment and leaves no permanent physical injury or disorder calculated or having a tendency to shorten life; that an inquiry as to certain diseases must refer to that alone, and not to one not included within the term nor connected therewith in symptoms or effect upon the system. If, however, the assured has actual knowledge as to the fact that the state of his health is such as to materially affect the risk and increase the hazard, it must be disclosed.”
See, Also, Archibald v. Mutual Life Ins. Co., 38 Wis. 542" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/archibald-v-mutual-life-insurance-6601907?utm_source=webapp" opinion_id="6601907">38 Wis. 542, from which opinion we quote as follows:
“In his application for the insurance Mr."Archibald represented, among other things, that his kidneys were in a healthy state and free from any tendency to disease. On behalf of the defendant the court was asked to instruct the jury that, ‘if the assured was ailing of any disease of the kidneys at the time of the application, and concealed it from the examining surgeon or from the company, it avoids the policy.’ We are inclined to think that there was some testimony tending to prove that the assured was then suffering from a disease of the kidneys and knew the fact. If so, the instruction should have been given.”
It is the duty of the court to give the same construction to these terms in a plea that it gives to them
“As used in this policy, we think the words ‘disease’ and ‘infirmity’ mean practically the same thing. When speaking of an ‘infirmity,’ we generally mean the state or quality of being infirm physically or otherwise, debility or weakness; and by the use of the word ‘disease’ we desire to convey the impression of a morbid condition, resulting from some functional disturbance or failure of physical function which tends to undermine the constitution. We do not, as a general rule, apply either term to a slight and temporary disorder, or to the imperfect working of some function, which is over in a short period of time, and which, when recovered from, leaves the body in its normal condition. In using either of the words, we do not, as a rule, refer to a slight and mere temporary disturbance or' enfeeblement. ’ ’
See also, Preferred Accident Ins. Co. v. Muir, 126 F. 926" court="3rd Cir." date_filed="1904-01-15" href="https://app.midpage.ai/document/preferred-acc-ins-v-muir-8752890?utm_source=webapp" opinion_id="8752890">126 Fed. 926, 61 C. C. A. 456; Logan v. Provident Savings Life Assurance Society of N. Y., 57 W. Va. 384" court="W. Va." date_filed="1905-03-21" href="https://app.midpage.ai/document/logan-v-provident-savings-life-assurance-society-of-new-york-8175669?utm_source=webapp" opinion_id="8175669">57 W. Va. 384, 50 S. E. 529; Cady v. Fidelity & Casualty Co. of N. Y., 134 Wis. 322, 113 N. W. 967, 17 L. R. A. (N. S.) 260.
The term “disease of the kidneys.,” as used in the special plea, does not mean that he was suffering from any temporary or trivial ailment, but rather from a ■serious ailment having a tendency to impair health and shorten life. It therefore follows that the court erred is sustaining the demurrer to this plea.
Reversed and remanded.