he never had bronchitis. The company's physician had examined him on a previous application, and reported that he had chronic bronchitis, and recommended postponement. The application on which policy was issued referred to the postponed application, and gave its number. Held, that the insurance company was charged with knowledge of what the former application disclosed.

THE EFFECT OF THE CERTIFICATE OF EXAMINING PHYSICIAN.

It is held in Hollman vs. Life Ins. Co., I Woods (U. S.), 674, that the certificate of the examining physician of the company is competent evidence of a recital therein as to the good health of the insured, and will estop the company to inquire into the correctness of answers of the insured in his application, as to his health, in the absence of testimony establishing that the physician was deceived either by false statements or by the suppression of facts, without a knowledge of which he could not come to a correct conclusion as to the condition of the party examined.

This rule has been enacted into statute by the State of Iowa in the following language:

"In any case where the medical examiner, or physician acting as such for any life insurance company or association doing business in the State shall issue a certificate of health or declare the applicant a fit subject for insurance, or so report to the company or association or its agent under the rules and regulations of such company or association, it shall be thereby estopped from setting up in defense of the action on such policy or certificate that the assured was not in the condition of health required by the policy at the time of the issuance or delivery thereof, unless the same was procured by or through the fraud or deceit of the assured."

The Supreme Court of Iowa, in Weimer vs. Economic Life Asso. of Clinton, 108 Iowa, 451, in construing the statute, says:

"The very evident purpose of the statute is to prevent the defeat of recovery on any policy where the company has, by its skilled agent, examined and passed upon the fitness of the applicant for insurance. The estoppel is directed to the inquiry as to the condition of health and it is quite immaterial what representations have been made or warranties given. The company having investigated, and

for itself ascertained and declared the condition of the assured to be such as required by its rules and regulations will not be permitted to interpose as a defense the physical infirmities of deceased, of which it knew, or might have known, as the result of its examination; and the fraud or deceit referred to is that of procuring the report or certificate of the physician and not the policy, there being no averment to the effect that the examiner was misled or deceived in any way, or that the report was the result of collusion between him and the assured."

The distinction of the Court that the fraud or deceit was that of procuring the report or certificate of the physician, and not the policy, would strike even the average layman as made to fit the occasion, and if not interested or prejudiced, would, to say the least, not tend to elevate the Court in his estimation.

The statements to medical examiner are a part of the contract when made so by the application, certificate or constitution and laws. Whether they are representations or warranties depends upon the stipulations of the application, which may be controlled by statute and, erstwhile, by the construction of the Courts.

Several States have enacted statutes making such statements representations, and providing that they must be material as affecting the risk, the question as to their materiality being one for the Court and jury to determine. And in the absence of statutes, notwithstanding the positive agreement that the statements constitute the basis of the contract-in other words, warranties, a few Courts have held them as representations, and submitted their materiality to the jury.

To illustrate, in Supreme Conclave Knights of Damon, et al. vs. Wood, 47 S. E. (Ga.), 940; 120 Ga., 328, it is held that where an applicant agrees in his application that the statements made to the medical examiner are true, and these statements are made a part of the contract of insurance, and form the basis of such contract, any variation of any part of them which is material whereby the nature or extent, or character of the risk is changed, will avoid the policy, whether the statement was made in good faith, or wilfully or fraudulently.

It will be observed by the foregoing that while the words of the contract, applying the ordinary rules of construction, amount to a

warranty, the Court arrogates to itself to determine whether the false statements are material "whereby the nature, or extent, or character of the risk is changed." The effect of such holding being to deprive one of the contracting parties of the right to determine for himself that which is material as an inducement for his assuming the obligation.

Could a specific warranty as to the truth of the statements add. anything to their force, or change the contract? Certainly not, for the stipulations, under reasonable construction, amounted to a warranty.

In Brock vs. United Moderns, 81 S. W. (Tex. Civ. App.), 340, where the assured warranted and guaranteed the truth of his answers to questions in his medical examination, his answers were construed to be warranties, and being false, avoided the policy.

The Supreme Court of Arkansas, in Franklin Life Ins. Co. vs. Galligan, 73 S. W., 103, where the answers, by the terms of the application, were made warranties, held that the questions as to how long since the applicant was attended by a physician, and as to the nature of the ailment, must be construed as referring to some disease that would affect the insurance.

And is was held in Jennings vs. Supreme Council Loyal Add. Ben. Asso., 81 N. Y. S., 90, where a printed application required the applicant to state on his honor that the statements made and subscribed were true "to the best of his knowledge and belief," at the end of the application a statement was printed that the applicant warranted the truthfulness of the statements and agreed that any untrue statements, or any concealment of facts, should avoid the rights of himself and beneficiary, and at the end of the medical examination he was required to "warrant the truthfulness of all answers given to the above questions," that the answers in the application were representations, and not strict warranties.

It is useless to refer to more cases upon this point, as innumerable decisions can be cited and arranged in teter board fashion, and no general rule evolved; each case, to a large extent, depending upon its peculiar facts, and especially the forum in which it is tried. From all of which we can say that "the legal aspect of statements to medical examiner" has a wide perspective with varied scenery.

CAN FRATERNAL SOCIETIES COLLECT RATES UNDER N. F. C. TABLES AND LEGALLY AVOID GIVING EXTENDED INSUR

ANCE?

An address by Mr. Charles J. Kavanagh, Chicago, Illinois, General Solicitor for the National Union, read before the Law Section at its annual meeting held at Mackinac Island, Michigan, in August, 1905.

Mr. Kavanagh's address was as follows:

This is the question which the Committee on Program has propounded to me: And I answer, yes, so long as and to the extent that and provided

And that leads me to a consideration of another question which may or may not prove germane to the pertinent inquiry of the committee, but I think I can show such a relationship between them as will make a consideration of the one necessary to the proper consideration of the other. The second question is: "What are we here for? what is the chief purpose of the National Fraternal Congress?" The answer to this question is in my judgment, "Unity of action and solidarity of effort along lines of common interest." This Congress was intended to be a buckler and a shield of fraternal system. It was intended to throw such safeguards around the system as would enable the societies of which it is composed to prosecute their beneficent purposes, undismayed by the activities of old line influence and the hostility of State officers.

Of course, I do not wish to be understood as implying that this opportunity for unity of defense in matters of common concern was or is the only office that the Congress has to discharge. The admirable, indeed, priceless work of the Committee on Rates, which has given a new mortality table to the insurance world, would of itself have justified the existence of the Congress, if it had nothing else to its credit. The benefits which have already accrued to our cause through the association of the gentlemen comprising this Section might be cited as a substantial evidence of the Congress' value. The

same may no doubt be said of the Medical Section, and it is true that the discussions of live topics and the reading of papers upon subjects of common interest on the floor of the Congress are not without value to our cause, but when full testimony has been given to the value of each and all of these advantages and others which might be mentioned, the fact still remains that the Congress found its original reason to be in the necessity of meeting the onslaught of the old line companies either directly or made through government agencies, by an organized resistance intelligently and persistently directed. We were compelled to fight for our right to live, and the battle is by no means over.

For years this joint effort was effective because it was joint, because it was single, because the Congress, when it spoke to a Legislature, to a superintendent of insurance, spoke with the voice of authority from all the societies which were conducting a legitimate business, and consequently when it asked for just legislation it obtained it. Now, I am one who believes that we still need protection which only legislation can give us, and that it is the part of wisdom to so conduct our agencies of common effort as to insure us such legislation as our necessities may require.

But we are no longer a unit. The fraternal world is now represented, not by one, but by two great associations, and in place of the harmonious policy of the past, we have divided councils and effort neutralizing effort. It is safe to assert that the uniform bill of this Congress would have received the sanction of twenty-five or thirty Legislatures during the past winter if it had enjoyed the united support of the two associations. As it was, the energies of one were all directed to prevent its passage, and the consequence was that it was passed in a single State only (Tennessee), and even there in a form not entirely satisfactory. This is the harvest of disunion. I was not a member of the Congress when the differences arose which caused the separation and the creation of a second Congress. I do not know very exactly what those differences are, but I feel that the vital interests of the fraternal system are imperiled by the further continuance of this internecine warfare, and that the necessity for unity of action transcends any differences that may exist. I feel this deeply because I am convinced that the answer to

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