Smith, C. J.,
delivered the opinion of the court.
The appellee brought this suit against the appellant on an insurance policy in her favor on the life of her deceased husband, Henry C. Sloan, and from a judgment in her favor the appellant has brought the case to this court.
Under its plea of the general issue the appellant gave notice of .several affirmative defenses, one of which is:
“That the insured, Henry-C. Sloan, filed an application for insurance with -defendant prior to the issuing of the certificate on which the suit is based, and that said application became and was a part of the contract of insurance and by the terms of the said application, all the statements made therein by the insured were warranties.
“That in answer to the question in said application, 'Have you consulted or been attended by a physician for any disease or injury during the past five years?’ the [558]*558insured answered, ‘No,’ and that said answer was a warranty and was untrue, because the insured, Henry 0. Sloan, had consulted and had been attended by a physician for a disease within the past five years prior to making1 application for membership.”
The evidence was taken down by a stenographer who died before transcribing his notes and within the time allowed therefor.
Before a bill of exceptions could be prepared and tendered to the circuit judge, as provided by chapter 145, Laws of 1920, the circuit judge also died, because of which a bill of exceptions was prepared as in cases where no stenographer takes down the evidence, sworn to by counsel for the appellant, and filed with the papers in the case (see former appeal, 99 So. 568, from which it appears that the insurance policy sued on was regularly issued by the appellant to Henry C. Sloan on December 28-, 1921, and that said Sloan died of apoplexy on November 8, 1922.
The application for the policy which was signed by Sloan contains the following provision:
“I hereby certify, agree, and warrant that all the statements, representations, and answers' in this application, consisting of two pages as aforesaid, are full, complete and true, whether written by my own hand or not, and that any statements made by me for reinstatement shall be warranties, and T agree that any untrue statements or answers made by me in this application, or in any applications for reinstatement, or to the examining physician, or any concealment of facts in this application or to the examining physician, intentional or otherwise, or my being suspended or expelled from or voluntarily severing my connection with the society, or if I fail to comply with the laws of the society, now in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person or persons thereunder shall be forfeited.”
Among the witnesses were Dr. C. E. Lehmberg and Dr. [559]*559W. E. Brewer, both practicing physicians, and I. II. Simon, an agent of the New York Life Insurance Company, whose testimony, according'; to the bill of exceptions, is as follows:
Dr. C. E. Lehmberg:
“That in the month of December, 1920, he examined Mr. Sloan, the insured, for life insurance in another Compaq and discovered that he had high blood pressure, and so told Mr. Sloan, the insured; that he reported the condition of high blood pressure to the company for which he was examining the said Sloan, and that the said Sloan was denied the insurance applied for on account of the high blood pressure reported by witness; that the said insured during the month of January, 1.921, following, placed himself under the care of the witness, Dr. C. E. Lehmberg, for treatment, and that the witness saw the ■ insured professionally eight times between January and October of the 3rear 1921, and treated him for hardening of the arteries or arteriosclerosis, but did tell him that, he had hardening of the arteries; that the witness prescribed proper diet and regular habits principally; that the last two times witness saw the insured professionally during that year, he, the witness, was called to the home of the insured and found him in bed, and there treated him for the said trouble.”
Dr. W. E. Brewer:
“That he had seen Mr. Sloan, the insured, one time during the month of June, 1921, and found him suffering from high blood pressure; that the high blood pressure might have been témpora^ and might have been caused by improper diet, or something of the kind; that witness was called to see Mr. Sloan, November 2, 1922, and found him dead; that he had died suddenly, and of apoplex3r, soon after retiring.”
Mr. Simon:
“That the insured, during the month of December, 1921, had made application for insurance with the New [560]*560York Life Insurance Company, and liad been examined by Dr. J. W. Lipscomb of Columbus, Miss., who reported that said Henry C. Sloan had high blood pressure and hardening of the arteries; that the New York Life Insurance Company thereupon declined to insure the said Sloan at the regular or normal rate for his age, but rated him up eleven years, that is, from the age of forty-one to the age of fifty-two, on account of the condition of high blood pressure; that witness g,ot from his company a policy ' of insurance with the increased premium rate which had been raised from, thirty-six dollars per one thousand dollars insurance to forty-five dollars per one thousand dollars insurance, and offered it to the said Sloan, and that the said Sloan declined to take it on account of the increased rate, saying that he could get the insurance cheaper in the Woodmen of the World; that this insurance policy was offered- to the said Sloan one or two days before Christmas in the year 1921.”
The statement of Dr. Lehmberg’s testimony as set forth in the bill of exceptions is supported by the affidavit of himself and of the appellant’s attorney. The appellee denies that Dr. Lehmberg’s testimony was as set forth in the bill, of exceptions, and has filed in this court affidavits to the effect that Dr. Lehmberg testified that he did not inform Sloan that he was suffering from hardening of the arteries but did tell him that he had high blood pressure.
Under section 796, Code of 1906 (section 580, Hemingway’s Code), it becomes the duty of this court to determine what the evidence on which.the cause was tried in the court below was.
The affiants all heard Dr. Lehmberg’s testimony when it was delivered, and, in so far as appears from the record, are equally credible, and, were it not for the aid derived from an examination of the court’s instructions to the jury to which it is proper to look in this connection, Ave AA'ould have to hold that the appellant, on whom rests [561]*561the burden of proof, has failed to establish the correctness of its bill of exceptions.
At the request of the appellee the court below instructed -the jury:
“That, even if you do believe from the evidence that ITenrv C. S'loan had consulted or been attended by Dr. Lehmberg’ during* the five years before the date of the application, yet if you also believe from the evidence that when Henry C.
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Smith, C. J.,
delivered the opinion of the court.
The appellee brought this suit against the appellant on an insurance policy in her favor on the life of her deceased husband, Henry C. Sloan, and from a judgment in her favor the appellant has brought the case to this court.
Under its plea of the general issue the appellant gave notice of .several affirmative defenses, one of which is:
“That the insured, Henry-C. Sloan, filed an application for insurance with -defendant prior to the issuing of the certificate on which the suit is based, and that said application became and was a part of the contract of insurance and by the terms of the said application, all the statements made therein by the insured were warranties.
“That in answer to the question in said application, 'Have you consulted or been attended by a physician for any disease or injury during the past five years?’ the [558]*558insured answered, ‘No,’ and that said answer was a warranty and was untrue, because the insured, Henry 0. Sloan, had consulted and had been attended by a physician for a disease within the past five years prior to making1 application for membership.”
The evidence was taken down by a stenographer who died before transcribing his notes and within the time allowed therefor.
Before a bill of exceptions could be prepared and tendered to the circuit judge, as provided by chapter 145, Laws of 1920, the circuit judge also died, because of which a bill of exceptions was prepared as in cases where no stenographer takes down the evidence, sworn to by counsel for the appellant, and filed with the papers in the case (see former appeal, 99 So. 568, from which it appears that the insurance policy sued on was regularly issued by the appellant to Henry C. Sloan on December 28-, 1921, and that said Sloan died of apoplexy on November 8, 1922.
The application for the policy which was signed by Sloan contains the following provision:
“I hereby certify, agree, and warrant that all the statements, representations, and answers' in this application, consisting of two pages as aforesaid, are full, complete and true, whether written by my own hand or not, and that any statements made by me for reinstatement shall be warranties, and T agree that any untrue statements or answers made by me in this application, or in any applications for reinstatement, or to the examining physician, or any concealment of facts in this application or to the examining physician, intentional or otherwise, or my being suspended or expelled from or voluntarily severing my connection with the society, or if I fail to comply with the laws of the society, now in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person or persons thereunder shall be forfeited.”
Among the witnesses were Dr. C. E. Lehmberg and Dr. [559]*559W. E. Brewer, both practicing physicians, and I. II. Simon, an agent of the New York Life Insurance Company, whose testimony, according'; to the bill of exceptions, is as follows:
Dr. C. E. Lehmberg:
“That in the month of December, 1920, he examined Mr. Sloan, the insured, for life insurance in another Compaq and discovered that he had high blood pressure, and so told Mr. Sloan, the insured; that he reported the condition of high blood pressure to the company for which he was examining the said Sloan, and that the said Sloan was denied the insurance applied for on account of the high blood pressure reported by witness; that the said insured during the month of January, 1.921, following, placed himself under the care of the witness, Dr. C. E. Lehmberg, for treatment, and that the witness saw the ■ insured professionally eight times between January and October of the 3rear 1921, and treated him for hardening of the arteries or arteriosclerosis, but did tell him that, he had hardening of the arteries; that the witness prescribed proper diet and regular habits principally; that the last two times witness saw the insured professionally during that year, he, the witness, was called to the home of the insured and found him in bed, and there treated him for the said trouble.”
Dr. W. E. Brewer:
“That he had seen Mr. Sloan, the insured, one time during the month of June, 1921, and found him suffering from high blood pressure; that the high blood pressure might have been témpora^ and might have been caused by improper diet, or something of the kind; that witness was called to see Mr. Sloan, November 2, 1922, and found him dead; that he had died suddenly, and of apoplex3r, soon after retiring.”
Mr. Simon:
“That the insured, during the month of December, 1921, had made application for insurance with the New [560]*560York Life Insurance Company, and liad been examined by Dr. J. W. Lipscomb of Columbus, Miss., who reported that said Henry C. Sloan had high blood pressure and hardening of the arteries; that the New York Life Insurance Company thereupon declined to insure the said Sloan at the regular or normal rate for his age, but rated him up eleven years, that is, from the age of forty-one to the age of fifty-two, on account of the condition of high blood pressure; that witness g,ot from his company a policy ' of insurance with the increased premium rate which had been raised from, thirty-six dollars per one thousand dollars insurance to forty-five dollars per one thousand dollars insurance, and offered it to the said Sloan, and that the said Sloan declined to take it on account of the increased rate, saying that he could get the insurance cheaper in the Woodmen of the World; that this insurance policy was offered- to the said Sloan one or two days before Christmas in the year 1921.”
The statement of Dr. Lehmberg’s testimony as set forth in the bill of exceptions is supported by the affidavit of himself and of the appellant’s attorney. The appellee denies that Dr. Lehmberg’s testimony was as set forth in the bill, of exceptions, and has filed in this court affidavits to the effect that Dr. Lehmberg testified that he did not inform Sloan that he was suffering from hardening of the arteries but did tell him that he had high blood pressure.
Under section 796, Code of 1906 (section 580, Hemingway’s Code), it becomes the duty of this court to determine what the evidence on which.the cause was tried in the court below was.
The affiants all heard Dr. Lehmberg’s testimony when it was delivered, and, in so far as appears from the record, are equally credible, and, were it not for the aid derived from an examination of the court’s instructions to the jury to which it is proper to look in this connection, Ave AA'ould have to hold that the appellant, on whom rests [561]*561the burden of proof, has failed to establish the correctness of its bill of exceptions.
At the request of the appellee the court below instructed -the jury:
“That, even if you do believe from the evidence that ITenrv C. S'loan had consulted or been attended by Dr. Lehmberg’ during* the five years before the date of the application, yet if you also believe from the evidence that when Henry C. Sloan answered the 'question whether he had consulted or been attended by a physician for any disease or injury during the past five years, and he answered ‘No,’ that he then did not.know there was anything the matter with him except high blood pressure, then his answering ‘No’ to the question would not vitiate the insurance policy sued on here, unless high blood pressure was a disease.”
At the request of the appellant the court instructed the jury: _ _ .
_ _ . “That, if you believe from the evidence that Mr. Sloan was suffering1 from arteriosclerosis during the year 1921, with arteriosclerosis or hardening* of the arteries during the year 1921, prior to the 13th of December, then they must find for the defendant, if it was a disease calculated to shorten or endanger life.”
The words, “if it was a disease calculated to shorten or endanger life,” were added to the instruction by the court, because of which appellee declined to use it.
The only witness who testified that Sloan consulted Dr. Lehmberg, and for what, was Dr. Lehmberg himself. It is clear, therefore, from these two instructions that the court below tried the case on the theory that Dr. Lehmberg had so testified as to at least warrant the jury in believing that he told Sloan he was suffering* from hardem ing of the arteries. Consequently we must resolve the conflict in the affidavits as to what Dr. Lehmberg’s testimony was in the appellant’s favor and hold that he told Sloan when treating him that he was suffering with hardening of the arteries.
[562]*562Hardening of the arteries is so well known to be a disease and not a mere temporary ailment that judicial notice of that fact may be taken, so that, in stating that he had not consulted or been attended by a physician for any disease, Sloan breached his warranty of the truth of his answers hereinbefore set forth, and consequently the policy issued to him may be avoided at the appellant’s option. It is unnecessary for us to pass on the ap}iellant’s- contention that the disease contemplated in the question propounded to Sloan is one that is material to the risk which the appellant assumed'by issuing the policy on Sloan’s life, for the reason that, assuming for the sake of the argument that there is merit in this contention, hardening of the arteries is well known to have a. tendency to shorten life, and such a disease is undoubtedly material to the risk. Leaving out of view the refusal by the court below of the appellant’s request for a peremptory instruction, the modification of the appellant’s instruction hereinbefore set forth by the addition thereto of the words, ££if it was a disease calculated to shorten or endanger life, ’ ’ was- erroneous, for which this judgement must be reversed.
One of the appellee’s contentions is that the appellant failed to return or tender to her in the court below the amount of the assessments on the policy paid by Sloan, and, consequently, must be held to have waived the breach of the warranty here in question. It is true that no such return or tender was made, but, conceding there would have been merit therein, no objection thereto was made in the court below, and cannot be made in the supreme court for the first time. Had such objection been made in the court below, the appellee could have avoided its effect by returning or tendering the assessment.
Reversed and remanded.