(Superior Court of Cincinnati.)

General Term.

#### THE OHIO MUTUAL LIFE ASSOCIATION, etc., v. MARY DRADDY.

(1) . It is the policy of the law to construe certificates of health furnished to a life insurance company favorably to the applicant for insurance; and when an applicant states in a renewal certificate that he is to the best of his knowledge, in the same sound condition of health as when last examined by the company’s physician, such certificate is not vitiated by reason of his suffering at that time from some disease or injury, unless it appears that he knew of such disease or injury, and also knew that it affected his sound health.

(2) . It will be regarded as error for a trial judge to present special charges to the jury by incorporating them in his general charge, unless it affirmatively appear from the record that the court was requested to give such charges before argument to the jury, and that the refusal to do so was the subject of an exception.

(3) . In life insurance, sound health means that state of health which is free from disease, or ailment that seriously affects the general healthfulness of the systom, as distinguished from a mere indisposition; and the statement to that effect by an applicant for insurance who has no knowledge of such ailment so far as he is concerned.

(4) . Interrogatories as to illness, for submission to a jury, which do not include a definition of sound health or a definition of what constitutes an ailment, may be properly refused by the court.

JACKSON, J.;

DEMPSEY and MURPHY, JJ., concur.

This was an action brought by Mary Draddy to recover, as beneficiary, the sum of $1,000 upon a policy of insurance issued by the Ohio Mutual Life Association upon the life of her husband, Frank R. Draddy.

It is admitted that the said Frank R. Draddy died on April 17, 1898, and that he became a member of the said association on December 10, 1892.

It is, however, contended, on behalf of the association, that at three dates subsequent to the issuance of the policy in question, namely, on February 1, 1896, August 3, 1896, and August 11, 1897, the said Frank R. Draddy failed to pay the premium when due on the said policy, and that in each instance a reinstatement was procured by the insured signing a health certificate, and that the deceased’s membership in the said association became void by reason I of certain alleged false statements made by the deceased in tne said health certificates.

The certificates in question are as follows:

> “This certifies that I am now, to the best of my knowledge, in the same sound condition of health as when last examined by the physieian of the Ohio Mutual Life Association. I have not now, and have not since said examination, any illness or injury, nor any medical ■ treatment, or any ailment affecting my health, so far as I know. •

> “I make this statement, understanding that if my lapsed membership in said association is renewed it will be upon faith in the foregoing representations, hereby waiving inquiry by the association as to the foregoing warranted declarations. I also agree that the association is not bound to accept any future lapse payments from me, by reason of doing so in this case.”

It is conceded that prior to the time of signing these renewal certificates the deceased had suffered from a stomach disorder of a more or less serious nature; but the evidence fails to show that the deceased was told by any of said'physicians that his malady was of a serious nature, and there is no evidence tending to show that Draddy did, in fact, know that he was being treated for any serious trouble. The evidenoe shows that the deceased was not at the times in question confined to his bed. On the contrary, he was at all times able to pursue his ordinary vocation. Nevertheless it is claimed by plaintiff in error that the policy became vitiated by reason of these facts.

The jury rendered a verdiot in favor of the plaintiff for the full amount of the policy and interest.

Plaintiff in error claims prejudicial errors in the following respects:

1. Charge of the court, (a) Error of the trial court in his general charge to the jury in construing the health certificate. (b) Refusal of the trial court to give the Bpecial charges requested by plaintiff in error, (c) Granting the special oharge requested by defendant in error.

2. Refusal to submit to the jury the interrogatories requested by plaintiff in error.

3. That the verdiot is clearly against the weight of the evidence.

The charge of the court construing said health certificate is as follows:

> “My construction of the language of these representations is that he is not required to enumerate any illness or injury which did not affect his sound health as I have previously described it; that a mere indisposition, for instance, is not covered by that; that the same is true as to the medical treatment referred to, it must have been *141with respect to some illness, injury or ailment affecting such sound health; and if he suffered from any ailment as distinguished from an illness or injury, such ailment must have been one affecting such sound health. JBut inasmuch as the representations contained the phrase “so far as I know,” even though the illness, injury or ailment affected his sound health, or the medical treatment was with respec.t to an illness, injury or ailment affecting his sound health, yet, if the said Draddy did not know, at the time he signed the certificates, that th.e injury, illness or ailment affected his sound health, or that the medical treatment was with respect to any injury, illness or ailment affecting his sound health, the representations are not untrue within the meaning of the certificate.”

The contention of plaintiff in. error is that the words “any illness or injury,” and also the words “nor any medical treatment,” are not qualified by the words “affecting my health;” that it is only the words “or any ailment,” appearing in the la.<t clause <>i the certificate, which is qualified by the words “affecting my health;” and that it was the duty of the applicant to make known any illness or injury whatsoever, or any medical statement which he had received.

We are unable to take this view of the construction of the certificate of health, and think the court properly construed the certificate in question.

It is the policy of the law to construe such certificates favorably to the applicant, and where there is any doubt as to the proper construction, that doubt should be resolved in favor of the applicant.

Plaintiff in error further alleges error on the part of the trial court in its refusal to give special charges marked A, D, E and P, on page 46 of the record. It is conceded that these charges were substantially given by the court to the jury in its general charge. Nevertheless it is contended that the court erred in not giving them to the jury before the arguments of counsel to the jury. The record, in this respect, states the following: “And thereupon counsel for defendant asked the court to give the following special charges. ” The failure of the court to give the special charges before the argument to the jury, under these circumstances, we do not regard •as error. The precise question has been decided in Street Railway Company v. Jenkins, 20 Circuit Court, 256, the syllabus in which case is as follows:

> “While it is the right of the party to have correct written instructions given by the court to the jury before the argument of the case to the jury commences, when properly asked, to constitute error as to this it must affirmatively pear from the réoord that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.”

.Although the instructions in question were presented to the court before the argument, the record fails to show that they were requested by counsel to be given to the jury before the argument began.

Plaintiff in error further alleges erroc in the giving by the court to the jury of the following special charge requested by defendant in error.

“In life insurance, ‘sound health’ means that state of health which is free from disease or ailment that seriously affects the general heathfuluess of the system; not a mere indisposition.

“If you find that prior to February 1, 1896; August 3, 1896, and August 11, 1897, when he signed the three certificates mentioned in the answer, Frank R. Draddy had any illness or ailment and medical treatment therein, yet unless he knew at those dates respectively, that such illness or ailment seriously' affected his general nealthfulness — that is to say, if he honestly believed that he had been suffering from a mere indisposition, your verdict should be for the plaintiff. ”

So much of the charge in question as defines sound health is in the exact language ot the supreme court of Ohio defining the term, “sound health,” in the case of Metropolitan Life Insurance Company v. Howie, 43 Weekly Law Bulletin,320. There is, therefore, no error in this respect.

So much of the charge in question as makes the knowledge of the deceased as to his having any serious ailment, a necessary element for the defense, we think, is also supported by the case of Bessie Q. Hunter v. the International Fraternal Alliance, decided by this court and reported in 5 Ohio Nisi Prius, page 35, and cases therein cited.

The next error alleged is that the court erred in its refusal to submit to the jury three several interrogatories.

The first interrogatory is as follows:

> “Did said Frank R. Draddy, whose life was insured by the policy sued on herein-have any illness affecting his health be, tween the time when he was examined by the physician of the defendant association for admission to membership therein, and the time that he signed any one of the three health certificates dated, respectively, February 1, 1896, August 3, 1896, and August 11, 1897, known to him at the time he signed any of said certificates?”

We think the court properly refused to give this interrogatory, because it fails to include therein a definition of sound health, which, under the facts’ and circumstances of the case, was a most important question for the jury to consider.

The second and third interrogatories are likewise objectionable in not containing a definition of what constitutes an ailment *142affecting sound health, and would, therefore, be misleading to the jury.

Boyce *&*Boyd and M. C. Slutes, for Plaintiff in Error.

Wiloy *&*Wald, for Defendant in Error.

We see, therefore, no error in the refusal of the court in this respect.

The third ground of error, namely that the verdict is clearly against the weight of the evidence, must also be resolved against the plaintiff in error. The record fails to sustain the plaintiff in error’s contention in this regard.

It follows that the judgment of the court below must, therefore, be affirmed.