is not stated. See Donahue v. Mut. Life Ins. Co., 37 N. D. 203, 217, 164 N. W. 50, L. R. A.1918A, 300. It is not questioned in the record that the insured when the application was taken and when the policy was issued was in good health. Then, apparently, he was a healthy and sturdy young man. The lay testimony in the record further is undisputed that his good health continued until Nov. 6th, 1918. Then, Bigham, observed in his opinion that he was a very sick man. The widow observed that in the evening of Nov. 6th, he complained of a headache; that also on Nov. 7th, he complained of a headache and on the evening of Nov. 8th, he started to get a fever. Otherwise he had been theretofore up and around. The immediate cause of his death was “Broncho-pneumonia” following “influenza.” Upon the record when was he not in good health? When does an attack of influenza or the existence of bodily conditions precedent there- to render one not in good health? Apparently, if we were to speak from statistics and the visual and mental knowledge forcibly brought to our attention during the epidemic of influenza in 1918, the disease was no respecter of persons. It attacked those apparently physically well and strong as rapidly as those otherwise. It attacked the young and vigorous even perhaps in greater numbers than the old and the weak. One might be apparently perfectly well today—and, on the morrow, attacked by the disease, nigh unto death. Does a headache render one not in good health? Nature’s signals are constantly being given concerning one’s bodily conditions. Perhaps, speaking out of our experience and the medical lore, not yet too definitely nor exactly known concerning influenza, we would readily say as a matter of fact, that the insured must have been necessarily in poor health on Nov. 8th, 1918. Because then the disease was at work and he died in fact on Nov. 10th, 1918. If the matter is to be determined on the record and by lay testimony, is not the question made one of fact for the jury, a question upon which the minds of reason- able men may differ. Dorey v. Met. Life Ins. Co. 172 Mass., 234, 51 ° N. E. 974; 25 Cyc. 950; Horne v. Hancock Mut. Life Ins. Co. 53 Pa. Sup. Ct., 330, 333; Healy v. Met. Life Ins. Co., 37 App. D. C. 240, 246. Upon this record we so believe and determine. It follows that the judgment and order must be affirmed. It is so ordered.
Birdzell, J., concurs.
Christianson, J. (concurring). The pivotal questions in this controversy are: (1) Was the policy ever delivered? and, (2) Was the in-
