#### William J. V. Crosse, Appellee, v. Supreme Lodge Knights and Ladies of Honor, Appellant.

Gen. No. 16,005.

INSURANCE — particular question in application construed. Held, that tlie question, "How long since you were attended by a physician or have professionally consulted one," is ambiguous and is susceptible of two interpretations, namely, "How long since you were last attended by a physician or have professionally consulted one,” and "How long since you were first attended by a physician or have professionally consulted one," and that it was for the jury to determine as a question of fact how the question was understood and answered in the application.

Assumpsit. Appeal from the County Court of Coot county; the Hon. William C. DeWole, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Affirmed.

Opinion filed December 13, 1912.

Ashceapt & Ashceaet, for appellant; E. M. Ash-ceaet and Chaeles F. Rathbuh, of counsel.

Edmund S. CummiNGs, for appellee.

Me. Justice Reaves

delivered the opinion of the court.

This is an appeal from a judgment of the County Court for $1,000, in favor of appellee, rendered on the verdict of a jury in a suit begun by appellee to recover on a benefit certificate issued by appellant to one Mary Ellen Crosse.

On the trial, the court submitted to the jury the following special finding':

> *337“Did the said Mary Ellen Crosse at any time within five years before the signing of the medical examination in evidence, professionally consult a physician?”

To this special finding the jury answered, “Yes.” In the medical examination the applicant, Mary Ellen Crosse, was asked, “How long since yon were attended by a physician or have professionally consulted one?” Her answer was,1 ‘ Seven years. ’ ’

The case was tried below, and has been argued here, apon the theory that the answer to this question was a warranty. Three reasons are urged by appellant for the reversal of this judgment: (1) That the verdict and judgment are contrary to the evidence; (2) that the court erred in refusing one of appellant’s instructions and in modifying another; and (3) that the court erred in refusing to render judgment for the defendant on the special finding of the jury.

The correctness of all three of these contentions turns on whether the question, “How long since you were attended by a physician or have professionally consulted one?” is ambiguous and susceptible of two interpretations. If it means, “How long since you were last attended by a physician or have professionally consulted one?”, the case should be reversed, for the evidence clearly shows, and the jury by their special finding found, that the applicant had professionally consulted a physician within five years. If, on the other hand, the question can as well be understood to mean, “How long since you were first attended by a physician or have professionally consulted one?” counsel for appellant admits the judgment must be affirmed.

Counsel have called our attention to but two eases in which the question here involved has been determined, and so far as we can find, they and the case of Moore v. Ins. Co., 3 Ont. App. (Upper Canada), 230, therein cited, are the only cases in which it has been determined. In the case of Stewart v. Equitable Life Association, 110 la. 528, the question put to the appli*338cant by tbe medical examiner was, “How long since yon have consulted a physician?”, and tbe answer was, “Five years.” Tbe proof showed that be bad consulted a physician within a year in relation to tbe disease of diabetes, with which be knew be was then suffering and which eventually caused bis death. Tbe court, on that state of facts, said, on page 531 of that opinion

> “Did this establish the falsity of bis answer ? That must depend on the character of the question, and on what would one in tbe situation of the deceased understand to be desired? The inquiry was not bow long since be last or first consulted a physician, but simply bow long since be did so. If be bad been under a doctor’s care some time, be would naturally infer that tbe information desired was when be was first so attended. Thus, one in tbe habit of using tobacco or intoxicating liquors, when asked bow long since you smoked or drank, would inevitably give tbe date of beginning. The same would be true in answer concerning any practice or custom. On the other band, one without such attendance for some time would infer tbe question to call for tbe last time a doctor bad been consulted. In Moore v. Insurance Co., 3 Ont. App. 230, it was held tbe assured, because of bis situation, was authorized to construe a similar question to relate to tbe first time be was attended by a physician. These questions were prepared by the insurer, and must be construed liberally in favor of the policy bolder. Because of tbe ambiguity, tbe information called for was uncertain, and whether tbe answer was false depends on tbe deceased’s understanding of what was required. Ordinarily, tbe intention of tbe insured is not involved where answers are warranted to be true. See cases cited above. But, where their truthfulness depends on tbe construction of a question subject to two different interpretations, then bis intention becomes important, for bis understanding of tbe inquiry deter*339mines the character of the answer. The material inquiry was whether the assured truthfully responded to the inquiry as he understood it.”

In the case of Smith v. Bankers’ Life Association, 3 23 Ill. App. 392, the question asked of the applicant, “How long since you consulted a physician?” was under (consideration, and the court held it was ambiguous and capable of being construed to mean either, “ITow long since you first consulted a physician” or “How long since you last consulted a physician,” and that which way the applicant understood it when he made his answer was a question of fact for the jury to determine, and was not one of construction by the court. Several other cases have been cited by (counsel for appellant, in which similar questions have been construed, as if the word “last” had been included in the question, but in none of these cases was the question of ambiguity mooted, and the cases have been decided as if there was but one way in which the question could be construed. Whether or not, if this was a new question for judicial determination, this court would have reached the same conclusion as was reached in the three cases cited, we feel disposed to adopt the holding in those eases, as being the only holdings of the courts in point, and therefore hold that the question in the case at bar is ambiguous, uncertain and susceptible of two constructions, and that what the applicant understood by it is one of fact for the jury to determine.

The instruction of appellant that was refused and the one that was modified and given were each framed by counsel for appellant upon the theory that it was the duty of the court to construe the question to mean, “How long since you were last attended by a physician or have professionally consulted one.” Neither of these instructions, in the light of the authorities cited, was correct. The court properly refused the one and properly modified the other by adding, “provided you believe from the evidence that Mrs. Crosse in her ap*340plication in evidence in answering ‘7 years’ to the question, £How long since yon were attended by a physician or have professionally consulted one?’ by said answer meant thereby that it had been seven years since she last professionally consulted a physician or was attended by one.” If these instructions had been given as requested, each of them would have told the jury, in effect, what the ambiguous question above considered meant, and would have called upon the jury to determine that the applicant had answered untruthfully, for they found that, within seven years prior to the medical examination, she had been attended by or had consulted a physician. This would have been manifestly wrong. While it is for the court to interpret a contract, it is not for the court to tell a jury what a person meant by an answer to an ambiguous question.

The contention that the ¡court should have entered judgment on the special finding of the jury is likewise without merit. The jury found that the applicant had professionally consulted a physician within the five years' before the time of the medical examination. That finding would be controlling of the general verdict only in ease the jury found that the insured had understood the ambiguous question heretofore discussed to mean when she last consulted a physician, and would be in no wise conflicting with the general verdict, if they found she understood it to mean wheri she first consulted a physician. It was, by the modification of the instruction above quoted, expressly left to the jury to determine which way she understood it, and they were told to return a verdict in favor of the defendant if they understood it to mean when she last consulted a physician. They returned a verdict in favor of the plaintiff, which amounted to' a finding by them that she did not understand the question to so mean, unless they entirely disregarded the instructions of the court, and this we have no right to assume.

*341Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.