On the evening of February 21, 1884, the insured took at his own house a lesson in fencing, with foils. His body was protected by a thickly-padded buckskin jacket, fitting closely and high about his neck, and his face was shielded by a visor, which were specially designed for the protection of persons engaged in this exercise. At the end of the exercise, he spat, as found. ‘a little blood,’ and immediately called his family physician, who, after an examination, expressed the opinion that his throat had been hit by the button of the foil, though no external mark or evidence of injury could be found. The insured was not conscious of having been hit, and was quite confident that he had not been. The physician made a careful examination, but found no evidence that the blood came from the throat or lungs. After the examination, the patient was put to bed, and treated in the manner, and for the time, described in the eighth finding of fact. No other hemorrhage occurred. March 2, 1884, his throat was examined by a specialist, who testified that, by the use of a powerful light and mirrors, he discovered the injury, which he described in the language used in the eighth finding. All the evidence descriptive of the injury and its effects was given by, the attending physician, and Jarvis, the specialist, who were called by the defendant, and by the plaintiff, called in her own behalf. He testified that he had been the insured’s family physician for 10 or 12 years prior to May, 1885. After having described the injury and its effects, he testified: ‘I was his attending physician for some time after this, [the accident,] until he moved away from that part of the city, in May, 1885.
September 14, 1866, the Mutual Life Insurance Company insured the life of the insured. The application, which was a part of the contract, and its statements, warranties, contained this question and answer: ‘Question. Has the party ever met with any accidental or serious personal injury? If so, what was it? Answer. No.’ The insured died in 1869; and in the action on the policy the jury returned a special finding that in 1862 the insured fell from a tree, was injured in consequence thereof, was sick for some time, but that she recovered, and that the injury had no permanent influence on her health. The fact that the insured had fallen, and had been somewhat injured, was not disclosed to the insurer. It was held that the injury was not, within the meaning of the contract, a serious one. At about the same time the Union Mutual Life Insurance Company of Maine insured the same life. This application was also a part of the contract, and its statements, warranties. It contained this question and answer: ‘Question. Has the party ever had any serious illness, local disease, or personal injury? If so, of what nature, and at what age? Answer. No.’ The accident which had happened to the insured was not disclosed to the insurer.
The issuer in this case is whether the Insurance Company is liable.