pregnant, when in fact and in truth she was, and the contract provided that the society would not become liable in such a case and that it would not consider such an application until at least two months after confinement, and the society collected and received dues, assessments, and premiums from the insured for a period of In an action for recovery on a life insurnearly five years thereafter, during which time the applicant was in good health, the insurance certificate, it is error for the trial court ance society will be held to have waived the to exclude the proofs of death which have been right to insist on a breach of the contract for furnished by the beneficiary, where the same are the falsity of the answer. offered in evidence on the trial by the insurance society.

An agreement or stipulation in a contract of insurance made with a married woman that the policy shall not go into effect unless it is delivered to her "while in sound health" is not violated by reason of the applicant being pregnant at the time of the delivery of the policyer on June 4th, and on the same date she was [citing Words and Phrases, vol. 7, p. 6554; given the medical examination, and answered vol. 8, p. 7802]. the list of questions submitted by the camp

[Ed. Note. For other cases, see Insurance, physician. On June 28th the society issued Dec. Dig. § 723.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

"(25) Have you ever had any disease of the day of June, 1902, and did not know such confollowing named organs, or any of the follow-dition June 28, 1902." The jury at the same ing named diseases or symptoms: Fistula? time returned a general verdict in favor of the plaintiff for the sum demanded by his complaint.

"(33) Is your menstruation regular and that, under the terms of this contract, the

are viewed by the law in the nature of war- mented the subsequent risk or diminished her ranties rather than as mere representations. life expectancy. In the application ques3 Joyce on Insurance, § 1944; Bacon on tion 331 is followed by a star, and at the foot Benefit Societies, § 194; Hoover v. Royal of the application blank is the following Neighbors of America, 65 Kan. 616, 70 Pac. note: "If applicant is pregnant, application 595; Beard v. Royal Neighbors of America, will not be accepted by Supreme physician. 53 Or. 102, 99 Pac. 83, 19 L. R. A. (N. S.) Examination should be postponed until at 798; Supreme Lodge Knights and Ladies of least two months after confinement." It apHonor v. Payne (Tex. Civ. App.) 110 S. W. pears that under the by-laws, rules, and reg523. It has been found as a fact that the in- ulations of the society in a case of this kind sured was pregnant at the time she made ap- the application is withheld until a period of plication for insurance, and at the time the two months after the confinement of the apbenefit certificate was issued to her. It is plicant, and thereupon the physician makes also established that she did not know of her the examination and takes the applicant's pregnancy at the time, and that her answer answers to the questions, and, if they prove was in good faith and honestly made. View- satisfactory in other respects, the application ing these facts alone, if we should follow the is accepted and the certificate is issued. In inflexible technical rule of warranties which this case no fraud was practiced whatever. has been adopted by many courts, the inquiry Although the society contends that the policy would end here, and we would hold that the never went into effect and that the contract breach itself avoided the contract, and that never became binding, still it received and the subsequent conduct of the society could accepted dues and assessments from the innot be considered. Joyce on Insurance, § sured for a period of more than four years 1970; McDermott v. Modern Woodmen of continuously succeeding her confinement, and America, 97 Mo. App. 636, 71 S. W. 833; also covering a subsequent period of gestaHoover v. Royal Neighbors of America, 65 tion and confinement, and the society is preKan. 616, 70 Pac. 595; Beard v. Royal Neigh-| sumed to have had notice through the local bors of America, 53 Or. 102, 99 Pac. 83, 19 camp of the existence of the facts and the L. R. A. (N. S.) 798; and authorities above happening of the contingency which would cited. have avoided the contract. The local camp of which the insured was a member collected and received the dues and assessments from its members, and was charged with the duty of looking after the health and conduct of its members and of expelling or suspending its members for any violation of the laws of the order or breach of their duties as members of the society. The local lodge was therefore the agent of the society which issued the benefit certificate, and the appellant, after the lapse of more than four years, is chargeable with notice of the existence of the condition on the part of the insured which would have avoided the risk and prevented the contract becoming effective and operative. Modern Woodmen v. Breckenridge, 75 Kan. 373, 89 Pac. 661, 10 L. R. A. (N. S.) 136, 12 Am. & Eng. Ann. Cas. 638; Order of Foresters v. Schweitzer, 171 Ill. 325, 49 N. E. 506; Supreme Lodge K. of H. v. Davis, 26 Colo. 252, 58 Pac. 595; Modern Woodmen of America v. Lane, 62 Neb. 89, 86 N. W. 943; Modern Woodmen of America v. Colman, 68 Neb. 660, 94 N. W. 814, 96 N. W. 154; Supreme Lodge K. P. v. Wellenvoss, 119 Fed. 671, 56 C. C. A. 287; Pringle v. Modern Woodmen of America, 76 Neb. 384, 107 N. W. 756. Under these facts and circumstances the doctrine of waiver should be applied to the society.

We are of the opinion, however, that there are rules of law and principles of equity that must be applied to the insurer as well as to the insured, and that its treatment of the contract for a number of years after the effects and consequences of the breach had disappeared is a subject requiring our consideration. The benefit certificate was issued to the insured on the 28th day of June, and thereafter, and on the 25th day of November of the same year, she gave birth to twins, both of whom were healthy and normal.

No unusual or unfavorable condition of health resulted from her confinement. She continued to be a member of Lakeside Camp No. 2373 located at Sand Point, and continued the regular payment of dues and assessments from time to time, and was in fairly good health until shortly before the date of her death in February, 1907. In the meanwhile she bore at least one child after the birth of the twins. It should at this point be observed that there is no provision of the contract or policy of insurance which attempts to suspend or avoid the contract after it is once entered into on account of subsequent pregnancy. The provision of the contract confronting us is a stipulation against pregnancy existing at the time of the application for the insurance. It is conceded in this case that the death of the insured did not result from any condition of the insured which existed at the time of making the application or of the issuance of the policy; nor, indeed, is it contended that the pregnancy of the insured at the time of the issuance of the policy in any way contributed to the ultimate cause of death or in any way ang

In Supreme Lodge K. of H. v. Davis, supra, the court said: "In a mutual benevolent order, composed of a supreme lodge and subor. dinate lodges, an officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members, and of

been in any manner advised that her policy was not in force, she would perhaps have procured one that would have been valid, and this would have been to the benefit of her family and in the interest of society as well, and the state itself must feel an interest in having her take such precautions, and in that sense the construction of such contracts becomes a matter of public policy. The insurer cannot suffer half so much from such a policy and such a construction as the individuals interested, and society at large must in the end of necessity suffer from the cold-blooded, technical rule that seems to prevail in so many jurisdictions. This ought to be the rule in order to prevent organizations soliciting membership, receiving insurance applications, and accepting dues and assessments for years, and then, after the applicant is perhaps too old to procure insurance elsewhere, tell the insured that he made a false answer in some one of the numerous questions propounded by the society, and that consequently his policy has never been in force. Such a contract is clearly violative of the interests of society at large and of the welfare of its citizens, and ought to be discouraged. The more than 200 questions contained in one application blank run the gamut of the applicant's ancestry from his grand ancestors down to date, and ask him about every disease and pathological condition for which the medical world has been able to invent a name, and then, if forsooth he misses a guess on any one of them, he is chargeable with expert knowledge and warranting the correctness of his answers, and must lose his protection on the venture of a guess. In such a game the insured has only a chance in hundreds, and the result must follow that he only thinks he is insured. It amounts to mental insurance and nothing more. The insurance society in such case could exist for the sole and only purpose of collecting dues and assessments with no insurance liability.

collecting and forwarding to the supreme we term "public policy." Had the insured lodge such assessments, is an agent of the supreme lodge, notwithstanding a rule or by-law of the order recites that such officer in collecting and forwarding assessments shall be the agent of the members of the subordinate lodge, and the supreme lodge is charged with all knowledge possessed by the agent in making the collection." In Trotter v. Grand Lodge Legion of Honor, 132 Iowa, 513, 109 N. W. 1099, 7 L. R. A. (N. S.) 569, the court said: "The, rule that courts will give effect to any act or circumstance from which it may fairly be argued that the insurer has waived the right to strict and literal performance by the insured, or upon which an estoppel against forfeiture may be found ed, applies to fraternal or lodge insurance. And whether a waiver of forfeiture of a certificate of insurance will be found in any particular case depends, not on the intention of the insurer, against whom it is asserted, but on the effect which its conduct or course of business has had upon the insured, and this rule is applicable where the insurer acts under a mistake." In Pringle v. Modern Woodmen of America, 76 Neb. 384, 113 N. W. 231, Pringle held a benefit certificate which contained a clause to the effect that it should become null and void if the insured should at any time be convicted of a felony. While holding the certificate, the insured was convicted of felony and sentenced to the state penitentiary, where he was confined for about six months and died. The beneficiary sued on the contract to recover the amount of the policy. It appeared that the insured had continuously kept up the payment of his dues and assessments. The Supreme Court of Nebraska, in speaking through Mr. Justice Barnes, said: "The local camp and its clerk being the agents of the association, the conclusive presumption, in the absence of fraud, is that they seasonably communicated the fact of Pringle's conviction to the head camp. Indeed, the clerk testified that the governing body knew of the fact, and his statement stands unchallenged, except by the evidence of one C. W. Hawes, the head clerk of the association. A like state of facts has often been held to amount to waiver of a similar forfeiture clause."

The state is vitally interested in the thrift and frugality of its citizens, and in encouraging the citizen in providing for his family and looking to their protection and comfort in the event of his demise. To allow him when acting honestly and from the most laudable motive to be led on under the belief that he is devoting his savings to the purchase of a legacy for his dependent ones, and then, when the beneficiary comes to make demand for that paltry recompense, to tell him that the courts, the final arbiters of his rights, will not listen to the equity of the case, would be doing violence to the principles of fair dealing, and would be likewise contrary to

Some courts have held, and we think the rule sound, that, notwithstanding the stipulation of warranty in such contracts, answers which merely express the opinion or judgment of the applicant cannot be classed among the facts, the truth of which is insured by the applicant-that he only warrants his honesty and good faith as to such answers. Rupert v. Supreme Court U. O. F., 94 Minn. 293, 102 N. W. 715; Ranta v. Supreme Tent of Maccabees, 97 Minn. 454, 107 N. W. 156; Royal Neighbors of America v. Wallace, 73 Neb. 409, 102 N. W. 1020; Royal Neighbors of America v. Wallace, 5 Neb. (Unof.) 519, 99 N. W. 256. "It would be solemn nonsense," says the Supreme Court of Minnesota in Ranta v. Supreme Tent of Maccabees, "to hold that an ordinary applicant insures the exact reality of physical conditions and causes at a time when the greatest pathologists might differ, or even when they

tion." This rule seems to us more in con- | acter of her condition and the cause for sonance with reason and justice than the which the operation was performed. He rule of strict literal warranty contended for by appellant. The application contained the stipulation that any certificate which might be issued to the applicant "shall be delivered to me while in sound health and in pursuance of the by-laws of the order." It is also contended that the insured was not in "sound health" at the time of delivery because of pregnancy. Pregnancy is not per se a condition of "unsound" health, nor is it a "disease" or "ailment" within the meaning of those terms used in this application and policy. The term "sound health" has been frequently defined by the courts, and, so far as we are advised, it has never been held that this term used in an insurance policy or certificate covered every slight ailment or indisposition of health of a temporary character which does not tend directly to shorten the life or undermine the constitution of the insured. Packard v. Metropolitan Life Ins. Co., 72 N. H. 1, 54 Atl. 287; Morrison v. Wisc. Odd Fellows' Mutual Life Ins. Co., 59 Wis. 162, 18 N. W. 13; Brown v. Metropolitan Life Ins. Co., 65 Mich. 306, 32 N. W. 610, 8 Am. St. Rep. 894; Manhattan Life Ins. Co. v. Carder, 82 Fed. 986, 27 C. C. A. 344; 7 Words and Phrases, 6554. So far as we are informed, this term of itself and standing alone has

never been held to cover or include a case of pregnancy. Appellant must therefore rest its case on the falsity of the representation that the insured was not pregnant.

Appellant attempted to show that the answer to question 18 was false, for the reason that the insured had consulted a physician within the period of seven years immediately preceding her application. On this point there was a sharp conflict in the evidence except with reference to one visit by a physician, who it is admitted attended her on April 5, 1899, the date of her last previous confine ment. The appellant had notice that the applicant was a married woman, and that she had already borne five children, and that she had been confined on April 5, 1899, which was only about three years prior to this application. It might have assumed that either a physician or a midwife attended her on this confinement. The attendance, however, of a physician at the time of a normal case of confinement, is clearly not a "consultation" or treatment of a "personal ailment" of the female confined. Childbirth is a physiological fact which occurs in the regular course. of nature, and neither signifies nor entails disease or ailment in the usual and ordinary use of those terms.

said: "The object of it was to remove the
right tube and the right ovary and drain for
an abscess in the pelvis." He also testified
to signing the death proofs, and identified the
paper containing the proofs made by him.
The defendant thereafter offered to introduce
in evidence the death proofs made by this
physician. The plaintiff objected, and the
objection was sustained by the court. This
ruling is assigned as error. The court should
have admitted this exhibit in evidence. It
is a uniform rule almost without exception
that such proofs are admissible when offered
by the insurer. 3 Elliott on Evidence, §§
2386-2389; Insurance Co. v. Newton, 22
Wall. 32, 22 L. Ed. 793; Beard v. Royal
Neighbors of America, 53 Or. 102, 99 Pac. 83,
19 L. R. A. (N. S.) 798. The defendant was
not prejudiced by the exclusion of this ex-
hibit. The exhibit has been preserved in
the record, and is before us. Answer No. 11
is the particular portion of the exhibit that
defendant offered in evidence and to the re
jection of which counsel took their exception
It is an answer to the question: "State the
remote cause of death." The answer given
by the physician is as follows: "Exposure
and cold. Patient had a recto vaginal fistula
which may predisposed to the pelvic inflam
mation 1st symptoms, severe abdominal pains,
tenderness of whole abdomen, vomiting and
constipation, Tympanitis then located pelvic
cellulitis uterus became filled was forming
in right side filling up Douglas pouch." This
answer was substantially the same as that
given by the doctor when on the witness
stand. His explanation at length as given
on the witness stand was clearer and more
complete than the answer given in the death
proofs. This is evidently due, however, to
the fact that he was asked more questions.
The purpose of this proof should not be lost
The defendant was not seeking to
sight of.
prove that the answers given in the death
proof showed that the insured had died from
a disease or malady or cause not covered by
the policy of insurance. The purpose must
have been either to impeach or discredit the
physician who was then testifying, or, what
is more probable, to show by inference that
the insured had fistula at the time she made
application for insurance. Death took place,
however, nearly five years after the applica-
tion was made, and, while she was afflicted
with fistula at the time of her death, the in-
ference that she had this trouble at the time
she made application for insurance would be
very remote and at most only prima facie.
These facts were substantially all before the
jury, and we are satisfied that the appellant
was not prejudiced by the erroneous ruling
of the court.

On the trial of the case, the plaintiff introduced the physician who attended the insured during her last sickness, and examined him as to the nature of her illness and the cause of death. He testified that she died following an operation performed by him, Appellant assigns as error the action of and testified to the general nature and char- the court in permitting the plaintiff to in