ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
MR. JUSTICE LAMAR delivered the opinion of the court.
The chief difficulty in the way of a connected review of this case lies in the great number of errors assigned by the plaintiff in error, embracing exceptions to the admission of evidence during the progress of the trial, and to the charge of the court, and also to refusals to charge as requested. They are sixty-six in number, covering ten pages of the printed record. They are, however, reduced by the brief of counsel to forty-five specifications grouped under twelve different headings. As we cannot discuss them singly, in the order in which they are presented, without being involved in an entanglement of multiform and somewhat inconsistent propositions, we will endeavor to dispose of the most material points under our own arrangement.
When the case was here before, speaking of the clause in the policy which is now in dispute, we said: "If the substantial cause of the death of the insured was an excessive use of alcoholic stimulants, not taken in good faith for medical purposes or under medical advice, his health was impaired by intemperance, within the meaning of the words 'so far intemperate as to impair his health,' although he may not have had delirium tremens, and although, previously to his last illness, he had not indulged in strong drink for such a long period of time or so frequently as to become habitually intemperate. Whether death was so caused is a matter to be determined by the jury under all the evidence." 123 U.S. 743, 744. Accordingly, on this trial of the case, to rebut the evidence offered by the defence, tending to show an excessive use of liquors on the part of the deceased, the plaintiff sought to show that the deceased had taken stimulants, at various times, sometimes in considerable quantities, upon the advice of his physician. The first, second and third specifications of error are that the court erred in allowing Mrs. Davey to answer certain questions put to her with reference to the fact of the deceased having taken stimulants upon the advice of his physician. As the questions were in proper form, and as such evidence was germane to the issue, there was no error in allowing her to answer them. It was shown that Dr. Kellerman, who prescribed stimulants for Mr. Davey during his lifetime, was dead at the time of the
trial, and, as Mrs. Davey testified that she was present when the prescription was given and afterwards prepared the stimulants for her husband, in accordance with that prescription, the evidence was properly admitted.
Without referring to the other exceptions relating to the evidence, none of which we think were well taken, we will proceed to the consideration of the specifications of error which relate to the instructions given and to those refused. The first specification of error, which we think proper to notice, is that the court erred in refusing to give the following instruction: "To establish the breach of the condition of the policy, 'become so far intemperate as to impair his health,' it is not necessary to satisfy the jury that his health was impaired to the extent of causing death." It is our opinion that this request was properly refused. The court had already given the substance of it to the jury, as a fundamental proposition underlying the entire body of the charge, in the following terms: "But this contract was made by the company and Mr. Davey upon certain expressed conditions, seven in all, which in clear and positive language limit in various ways the rights and obligations of both the contracting parties. It will be necessary for you, gentlemen, to consider, however, only one, or, to speak more accurately, only part of one of these conditions. It is the third, as you will find them numbered in the body of the policy or contract, which you will have before you. In that condition you will find these words: 'If the insured shall become so far intemperate as to impair his health or induce delirium tremens, this policy or contract shall become null and void.' In other words, so far as this suit is concerned, the contract between the Etna Life Insurance Company and Mr. Davey was this: For the consideration of the sum of $233.60, to be paid by Mr. Davey to the insurance company annually during his life, that company insured his life for ten thousand dollars, upon the expressed condition, nevertheless, that if Mr. Davey became so far intemperate as to impair his health, or became so far intemperate as to induce delirium tremens, then and in the case of the happening of either of these alternatives the contract became null and void, and the company would be
liable no longer under it." "If the company have satisfied you that he has done either one or the other -- that he has become so far intemperate as to impair his health, or by his intemperance has induced delirium tremens -- a complete defence to this suit has been made, and your verdict would be for the defendant." "I think it proper, before I call your attention to the evidence which has been given, and which I shall do very briefly, to explain as clearly as I can what is meant by the words, 'so far intemperate as to impair health or induce delirium tremens.'" "Mr. Davey agrees that he will not become so far intemperate as what? Why, become so far intemperate as to impair his health, or so far intemperate as to induce delirium tremens. If impairment of health or if delirium tremens was caused by or followed his intemperance, then the degree of intemperance which has been forbidden by this condition has been reached. Thus you will perceive that if a single debauch, lasting for a period of a few days, or it may be a single day only, results in the impairment of health or in delirium tremens, it will be clearly that intemperance which is positively forbidden." After this full and explicit instruction there was certainly no error in refusing the request to repeat it in different language.
Five of the exceptions relate to the charge given by the court with reference to the liquor taken by the deceased on the advice of his physician, and four relate to the refusal of the court to charge as requested by the plaintiff in error on the same point. Those parts of the charge that are excepted to are as follows: "If the jury should believe that the efficient controlling cause of the death of William A. Davey was the excessive and continuous use of strong drinks for several days and nights immediately preceding his death, yet if they believe that it was taken in good faith for medical purposes under medical advice, such use was not a violation of that condition of the policy which declares that it shall be null and void if he shall become so far intemperate as to impair his health or induce delirium tremens." "Whether the health of William A. Davey was impaired by the use of alcoholic stimulants not taken in good faith for medicinal purposes or under
medical advice, is a matter to be determined by the jury under all the evidence." "If, on the other hand, the testimony does not so satisfy you, [that Mr. Davey became so intemperate in the use of alcoholic spirits as to impair his health, or that, at Alexandria Bay, in 1881, he indulged in the use of alcoholic liquor to such an extent as to induce delirium tremens,] or if you are convinced that all the liquor which he used was used in good faith, under medical advice and for medical purposes, as claimed by the plaintiff, then your verdict should be for the plaintiff." "It is in evidence that Mr. Davey did take alcoholic stimulants under medical advice. If his taking them was only under such advice and only in such quantities as prescribed by [his] physician, even if impairment of health followed, yet the policy would not become void." "If, from all the testimony in this case, you conclude that Mr. Davey's condition in ...