Opinion by

There was no evidence of fraud or misrepresentation in obtaining the insurance, and the sole question for the jury was whether the insured was in sound health when the policy was issued. It appears to have been conceded that the immediate cause of his death was typhoid pneumonia, but the defendant company claimed that he was affected with chronic epilepsy, and introduced some evidence to support its claim. Upon this evidence it requested the court to say that its claim was substantiated and to direct the jury to find in its favor. The court declined to comply with the request and referred the question to the jury with the instruction that if they believed from the evidence that the insured was afflicted with chronic epilepsy at the time of the issuing of the policy, then he was notin sound health and the verdict should be for the defendant. The refusal of the request is the subject of the first specification of error. The condition of the health of the insured when the policy was issued was essentially and entirely a question of fact to be decided upon the evidence and involving the credibility of witnesses. The most of the evidence affecting this question related to the period of his childhood, and was to the effect that he occasionly had fits, “ or weak spells.” His father, who was called by and on behalf of the defendant, testified that he had not seen *509his sou have “ a weak spell ” for twelve years preceding the issuing of the policy, although during all that time the latter dwelt and worked with the former. He testified further that his son was strong and active, and the most of the time referred to was employed as a hodman. The sister of the insured who was also called by the defendant company testified substantially as her father did in regard to her brother’s health and ability to labor. Their testimony was uneontradicted and tended to show that he was in sound health when the policy was issued. The certificate of the physician who attended him in his last sickness afforded but little if any support to the claim that he was afflicted with chronic epilepsy. It was, on this point, plainly reconcilable with the testimony of the father and sister, and with the other evidence in the case. Our conclusion resulting from an examination of all the testimony is that the question whether the insured was in sound health when the policy was issued was for the jury, and that it would have been manifest error to refuse to submit it to them.

The second and third specifications are based on excerpts from the charge which the defendant characterizes as misleading. We have given to this complaint all the consideration it deserves and are convinced that it is without just foundation. The charge appears to be adapted to the issue and the evidence affecting it, and there is no prejudice, partiality or tendency to mislead, discernible in it. It was the duty of the learned trial judge to construe the contract and to define the scope and meaning of the provision in it on which the defendant sought to avoid the insurance. It is not claimed that there was any error in his construction of the contract, but the learned counsel for the defendant appears to think that his explanation of the meaning of the words “ sound health ” as used in the policy was more elaborate and illustrative than was necessary and tended to belittle the defense. We do not think so; nor do we see any merit in the criticism of the portion of the charge which is complained of in the third specification. The jury were plainly and repeatedly informed that the material question for their determination was whether the insured was in sound health when the policy was issued. There was no room in the instruction on this point for misapprehension of the issue. The specifications are overruled.

Judgment affirmed.