650
FEDERAL REPORTER,
vol. 3.8.
the end oUt, or words to that effect. !tis clAiinedthat that was the settlement and closing up of the transaction.. That depends altogether upon the testimony and what you find from the witnesses, and, of course, if he settled then, that is the end of it."
Mr. Lincoln. As I understand the ,charge ofthe court, the jury might have got an impression that if Mr. Edwards did in fact buy in Chicago this grain, that that bound the The' chal'ge of the court seemed to be based upon the the'Jrythat if they find that Edwards did in fact buy the grain in Chicago that then we were bound, for it, and I don't think the court intended that. 1 The Oourt. I do:not think counsel understood the charge as well as the jury. 'Idid:not intend to convey that impression. I have all the time referred to the contract between the .parties, and the contract between parties is when the minds meet. That,in a writtenooutract, is when they sign the'papetsJ in an oral contract, wheh they come to an understanding. It is the understanding when the contract is made that governs. Ifths understanding then was that there should be an actual :purchase, and an actual delivery 'and receipt of'the grain, :the contract is binding, notwithstanding they'may,bavesubsequentlyconcluded to sell out, or even to settle differences. If; the contract was a ,bona fide one for the actual pllrohaaeand sale,itwas good; If it was not good. when it was made it couidinot be made gObdby 8ubsequentpurchase; thatds to say, :Mr. Edwards could 'not be permi,tted to tack .and change his course aud get into 'shape,to claim to bein'the positionof'a"bonajidepurqhaser of grain umessyoll are satisfied that that was the agreement at the time , the contraot was mads; 'Mr. point was simply, thetnere fact that Mr. Edwards did buy it up there did not bind us.' . .The Ooutt.· f' have tried to say that. I do not see how I could make it any mote clear· . :;.
DAVEY t'.1ETNALIFE INS. (Oirouit (Jourt, D. New J81'8et!.
Co.
April 1, 1889.) . ,., ,. .., '.
·1
Where a policy' 'df' 'life insurance contains the proviso that it the insured ·'''shall becoroe, 'so far· intemperate as to impair' his 'health,' or induce delirium " ttremena.. '! tM;policyshallbecome nuHandvoid. iUs t!ot,necessllry forthe cle.': fendant. to. Prove that th«:! insured ,had hlj-bitually intemperate for any length of 'timil before hIs death, in ordertd avoi'd thll'policy; but th'e condi, lion Will:lt8 br.oken if it appear that the insureq. died from" the effects ofa
a.
A physicillIfs .Cllrtificate of death, when made.6» paNe, is not proof of the cause of death:. S;sagalnst the opposite party, but whim explained andafilrm'ed at the triw1WIto Its statements by the physician who'made it, it maybe conal-dered all partQf tpe eviclence, .' , .' PO,"IOY-;OO;rmI'rION7CPN!!TRUCTION. .·. .' ." '.' . '
ON PODICIES.."..EvIl)ENCE."
:PAVEY
v·. lETNALIFEINB·. CO.
651
single drunken debauch,eontiIIUed for or ten days. immediately. ceding hjs de.alh.. and that tIme he .may have led a or even a strIctly abstemIOUS, hfe. .
At Law. John Linn and Cortlandt Parker, for plaintiff. Theron G, Strong and Joseph D. Beale, for defendant. WALES, J., (charging jury.) This is an action of debt on a policy of 1878, issued by the lEtna Life Insurance Cominsurance, dated July pany of Hartford, Conn., to William A. Davey, whereby, in consideration of the representations and declarations made to the company in the application for the policy, and of the annual premium of $233.60, to be paid to the company on or before the 16th of July in each year during the oontinuance of the policy, the company insured the life of the said William A. Davey in t4ee sum of $10,000, to be paid to his wife, Ada Davey, or, in the event of her death before his, to his executors, The annual premiums were duly paid up to and including the 16th;day of July, 1881 j and shortly after the payment of the last premium, tawit, on the 6th of August, 1881, the insured died,leaving his wife, the said Ada Davey, the plaintiff in. this action, to survive him. Proofs of death of the insured, according to the form prepared by the company, were dilly made and delivered to the company, and payment of the amount stated in the policy dema.nded, and, this payment havingheen refused, the· plaintiff brought this action. The ,excuse or justification made by the company for its refusal to pay the sum demanded is that the insured failed to observe and perform one ofthe conditions contained in and constituting a part of the contract of insuranpe, and thereby released the company from all obligation to pay the sum. These conditions are to be found in the third clause of the policy, and among them is one which provides that if the insured ."shall become so far intemperate as to impair his health, or induce de-. \lirium tr,em61l8," the policy shall become null and void. By his contract ;,with the company the insured accepted this condition, and agreed to lead a temperate life, and not to indulge in the use of alcoholic liquors to such an extent as to impair his health, or induce delirium trem61l8, and that, if he should break this condition, the contract between him and the company would be at an end, and the company would be no longer liable on its policy. It is alleged by the company that the insuredviolatedthis condition,-this part ofhis contract,-and that in consequence his health. was impaired, and that his death was caused by intern per..; ance or by delirium trem61l8, induced by his excessive indulgence in the use of alcoholic liquors. This, gentlemen, we understand to be the ground of defense to this action, and it will be your duty to seriously consider and weigh the evidence which has been submitted to you in support of ,the excusE,> and justification of the company in their refusal to pay the. money, The isst1(\ of fact is distinctly and broadly made,.l1nd tpe.question for )'OU to decide may be divided into two .parts.: First,.lll\d ,the insured, after. tb e date of the policy,. become so far intem-
652
vol. 38.
perate as to impair his healthjor. did his intemperance cause or induce delirium tremens? If either of these questions is answered in the affirmative your verdict must be for the defendant, for in either case the inEured, William A. Davey, would have broken his contract, and the plaintiff here cannot recover. In the instructions now to be given to you we do not intend to review the evidence in detail, or to comment on the testimony further than may be proper to direct your attention to the history of the brief illness of the insured, which immediately preceded his death, so far as that history can be gathered or inferred from the statements of witnesses on both sides, and from the admissions of the insured himself. By way of introduction, it may be stated that at the date of the policy the insured was in the ,thirty-second year of his age, and at the time of his death was not yet thirty-five; He was therefore .in the prime of life, alid in his'application for the policy represented himself to be of sober and temnot addicted to the excessive or intemperate use of any alcoholic stimulants, or opium, and declared thafhe did not use any ofrtbem often, or daily. It appears, however, from the testimony of Mrs. Davey,' that, for some time previous to his last illness, he had not been in \>igorous health, but complained of a cough and lung trouble, had taken medicaJadvice,!1hd had gone abroad for a few rnonths with the hope of <:lbtainingreliefj but,without deriving; much benefit from the chal1ge. He wlt$ '8 'manufacturer by occupation, and it was the chief part of his duty to attend to the financial branch of the business, conduct the correspondence, and visit Boston, Philadelphia, Baltimore, Rochester, and other eastern cities, at least once a year, in connection with the interests of, his firm. It had been his custom for several years before and after his<marriage,which was in 1876, to visit Alexandria Bay, in the state of New: York, during the months of July and August, where he would tlemainfor at least two weeks, engaged daily in boating and ing. Subsequent to his marriage his wife had alwaya accompanied him business trips and in these summer excursions, until the last one, when he went alone, his wife having been advised by her physician to seek ,the cooler atmosphere of the Catskills. Prior to this time, Mrs. Davey, says ,that her husband had been temperllteand moderate in the lise ,of liquor; that she had never seen him intoxicated; and tha:t by the direction of 'his doctor she had administered to him milk punches and sherry-wine for the benefit of his health. His brothers, who were as.' 8ociated:with: him ,in business, and who saw him almost daily, also testify:thaldhey never saw him intoxicated or injuriollslyaflected by the tlse of liquor. " Mr. Van Horn, anintimate personal frieridoftheinsured, and MbMatootle, an old friend of Mrs. Davey i both say that, sofar as th.leir observation went, the insured was never intoxicated. l\k Davey· arrived at' Alex'andriaBay on Saturday, the 23d of July, 1881, in the' evening, and was met by Mr. Matoone and others; whoassiflted hini to tlfe Crossman House,--the hotel where he boarded dUTing'hisstay'. He was ;spffering: fronl a sprained ankle, and walked with shuffling gait. Mtei' iieaching. the hotel· he was not in a condition to' See any .one,: pre':':
DA.VEY V. lETNA LIFE INS. CO.
653
sumably from debility and the fatigue of his journey, and, at the suggestion of Mr. Matoone, retired to his room soon after supper. There is no director satisfl1ctoryevidence as to the condition of,·Mr. Davey's health at this tim.e; and there is no proof that he was under medical treatment, or that he was afflicted with any special disease or complaint. On the day following his arrival he walked over to the Thousand Island House to call on Mr. Matoone, who had not then breakfasted, and passed some little time with that gentleman. On the same day he went out boating for a few hours. On Monday, the 25th of July, and on.every succeeding day, with possibly the exception of Sunday, the 31st, he was out on the bay or river, boating and fishing, until Wednesday, the 3d of August, when he was discovered early in the morning in his room, at the Crossman House, prostrated by an attack of illness, which grew rapidly worse, and resulted in his death on Saturday, the 6th. The certificate of death of the insured was made by Dr. Rae of Jersey City, his family physician, who had been summoned by telegram to at.. tendhil11fand who answered as follows to the questions relating to the aLbis length of . his acquaintance with the insured, and to the death. 'After stating that he had been called to attend Mr. Daveyion or about the 4th day of 'August, 1881, and continued with him until the day of his death, he says in reply to the first question: "'(1) How long have you known the decpased? .About three yeats. What was th'edirect cause of his death? Exhaustion from hematemesiS'. '(3) What were tbeindirect causes of his death? Exposure to the sun andcirrhosis of the liver.' (4) Was,blslasl; illness occasioned, 01' had his generalhealtb by any pernicious habits? . He was in the habit of lIsingstimbeen ulants, lind a greilt deal oftobl\cco.. Probably they .impaired his he.alth. (5) Was his health impaired by intemperance? See answer to 4.' ,(6) Was his death caused directly or indirectlyfl'om intemperance? See answer to 4." On the presentation of this certificate to the proper officers·of theicoin:. pany, it was not only light and proper, but it was incumbent on'them, in the discharge of their duty, to inquire further into the Clfcumstances attending the death of Mr. Drtvey, in order to ascertain whether or not he had fairly kept and performed his part of the contract. Having done this, they became satisfied that he had broken the condition' to which your attention has been: ca11ell; tbat the policy was thert'by forfeited; and that tHe company was nQt liabJe for the amount insured. ,In taking this course the company cannot be censured or reflected on for adopting any unjristoroppressive measures to .resist the payment of what .they enough ofdoubta;nd consider to bean illegal claim. There is uncertainty in this as it stands, as to the directodhdiTect causes of Mr.· Dayey's death, to awaken suSpicion; and there has also been sufficient evidence submitted to you by the conipanytojustify them in layingdhElwhole case before a jury, and asking for animpartiid ver.. dict. This certificate, of itself,anduuexplained,is dence of tlYe cause of death;' nor is it prima jacie'proofagainst the plain:. tiff, fOf the'reason thatit was taken ex: parteptndwithout bpporblllity for .but ilrb:eoomes a· part bf .theevidence now to be 'con-
654
FEDERAt.,REPORTllJR,
sidered by ybu, in so far as it has been explained by, and incorporated with the Dx;'&ei·who'hae·been examined before you in. reference'tadt, and who has ,substantially repeated a.nd confirmed its statements; These statements are cautious, guarded, and somewhat indefinite, hut riot unfairly so, because it is the privilege and right of every similar circumstances, in the abseuceofa post mortem physician, examination, to qualify his opinion or judgment of the cause of his tient's death. In .giving his .opinion, Dr. Rae says that he was guided by his own observation, and qythe statements made to him by Dr. Watsdn, the localphysician,whohadheen called in before his arrival. The certificate, gives as the ca·use ofdeath hematemesis,-the vomiting of blood frQmthe stomach,-which is one of the symptoms of cirrhosis of the:liver,-that is, a condition oftthe liver produced in a large proportion of cases by the excessive 'or intemperate use ofalcoholic liquor for any considerable length of time. Dr. Rae is an intelligent physician, and gave bis testimony with apparent candor. He had known the deCeased for thnee,:y,ears, had attended him professionally, and, as the result ofhis ooser\'atiQn and knowledge, tells you, after certifyingthe cause of death according to his best judgment, that Mr. Davey was in the habit ofusin,* stimulants, great deal of tobacco,and that they probably impaired his health. '. . We have tlws particularJ,y yoqr to the certificate of deatli;'and to the testimony ofDi. Rae in conjunction therewith, because they. together will form the starting point in your investigation of the actual and reaLcause of ,Mr. Davey's death. You: have heard the testimony of Dr. Watson, who w\ts callEid to see the insured on Wednes'day :When he first discovered under the attack which 'proved fa,tal, and yOIl Will recall his nurration ofthe condition in which he found Mr. Davey, and of what he said about himself. You will not fail to remember the deolarations of Mr. Da.v:ey, his confession, he had been cautioned by: his family physician that unless be,would stop,drinking he would be liable to these attacks, and that he supposed it WltSi all, up with him now.. Then there is the testimony of ,Dr.: Bruue, who, in the months of}uly and August, 1881, was acting in the of clerk in the Crossman House, and at the same time was ;pur6uing the study of medicine, and is now a practicing physician, and ;woo sa\'\" MrJDavey very often during his illness. And, finally, there is ,of, several other ,persons, boatmen, bar-keepers, and bellboy',who had' known Mr. Davey for various periods, his annual sojourns atAlexandria Bay, extending in some cases as jar l;>ack as seven :or,.eight y.ears'before ,his death; and they told you what they knew in -reference to his habits of drinking while there, especially on the occasion of bis last visit.' One of these witnesses-the oarsnlan who, attended Mr. Davey every day from the 24th of Jl1ly to August 3, 1881-says ·tOOth6 warned Mr. Davey that "ifhe didn't stop drinking so much he woUld kill hiiliself"and was his ,Qwn .business." In additii)o 'to thew,itnesses. who. speak from personal observation edge of Mr. Davey's habits,there is the expert testimony of Drs. Phil-
DAVEY
v.
lETNA LIFE INS·. CO.
,655
lips aM ,Ward, who gave their professional opinion and judgnientonthe effects of the supposed quantities of liquor taken by Mr. Davey ,during . the eight or ten.days preceding his prostration, ;and also what in their opinion; after hearing the testimony of Drs.iW:atson' and Raejandof the other witnesses, was the cause .of his death. On' this evidence, which viTehave'bl'iefly passed in review, the defendant's case rests, an,d it is that Mr. violated claimed by the company, to h/lVe proved and his contract by becoming ,so far intemperate' as to 'im}YI.ir his so rendered the policy void. By ,way of rebuttaljthe plaintiff has pro/'lubduced testimony to show ,that Mil'. Davey hadalways been, at sequent to the date .of thepoJicy, and up to the of his death,-;tha1 portion ,9f his life with, which we are now more particularly cony,erned, -a flober man. This testimony comesJrom the .wife aJ,ld brothers of Mr. and from two faplily friends, Mr. ,Matoone and ¥r. Horn,none .of whom, however, saw him dpring his at AlexaIlMr. dria Bay, until he was in a dying condition, Now, gentlemen, to consider, all the testimony that h¥ been and defendant on this of the offered, by the. lationofhis contract by Dayey, for iUs you;r proviIlcet<>. decide on been established (In the, ,or the other." . If, the f!lcts after a,carefvland evidence, y,ou shall be satisfie\i that Mr. Davey did, after tJ:1e, claw of ,become inteIJ}..perate as to iJ;npairhis or induce , i'l:qust be the d.efElndaIlt, but ifyou Sl1l1-11 ,not be so aatisiP1l};ntiff 1.>e, to a for tIle the policy, with interest. not in making dict, that you should be satisfied beyond a reasonable doubt of any fact or facts in reference to which evidence has beenigivenin the COUtfre'bf' the trial. You are only required to be governed by the weight of the testimony, and on whichever side that weight preponderates your verdict must be rendered . already ,tri!Jl a verdict was rendered for the plaintiff; but, the judgment entered on that verdict having been reversed by tbeappellMe,.C(i)urt1in consequence of to the trial, of the the erroneous construction, words, "so tar intemperate as tofmpair his health," the cause has been put. l;1ip01l remanded here to be. tried over again under the .those' words by the of the United States; Of course, if the evidence which you DaYeydied froIl1delirium tremenB, then there can be no doubt that thepolioy was thereb1 forfeited, andthe if YOU'llhall not pe satisfied that he di¥ from .tgat · t4en Y;lj>ur be , directed to, the meaning and import of the words"so ·far intempera,te as to health, ",ahd" ir>; 'order that yiouin,.4Y clearly the interpretatjQl). of thl1t ·Phrase, py the we will readJthat portion.of theopmion of the court which ext·
f
i:
,;
,.,
"
t',
I '.
':',' 'f
,
;1!:H'.'
.1-
."
18 Sup.
at. Rep. 831.
656
presses what these words mean. 'The court, speaking through Mr. Jus. tice HARLAN, .says; · "If the substantial, cause of the'death of the insured was an excessive use of alcoholic sthnulants. not taken in good faith for medical purposes, or under medical his health was impaired by intemperance. within the meaning of the \Vords ·so far intemperate as to impair his health,' although he may notha've. had deli1-ium tremens, and although, previously to his last illness, 11e had not indulged in strong ddnk for such a longpel'iod 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. " This langling-e'is plain,i.mequivocal, and cannot be misunderstood. If, Mr:'Davey died' ftorn a single debauch, continued for one day or for ten.'days, he did become "safar intemperate as to impair his health!"altMugh hehad 1 previously to his last illness, led a temperate, or even strj'6tly ab'stemious,'1ife; This construction of the words contained in. tbe"third clause Of the policy is binding on this and on all other federa,}courts, nnditis yotirduty,as well.as ours,to obey it. You are the jud'gesof the facts and'ofthe credibility of witnesses, but you must give yourobedience to ttie lawtls announced by the highest tribunal in the land. In what we 'haVe"nOW said to you; we have endeavored to substatitially all the for special instructions made by the counsel fo't'tnEl respectively, with perhaps one .exception, Which is'this: deliberations you will not be infiuenced or. controllEld .by any, motives of sympathy or, prejudice for or agai'n'st eitbel"of the parties ''to this action', but thatyoq.will renden verdibtaccordingto 'thee:vidence,"';';"ajust and impartial verdict, which will commandtheapprov'al of your own consciences. . . · . 1 .. · ' ;' i' ,
Yert;lict for
plaintUl·
.'CBICAGb.B.·'.&Q. R; DcL ", ; \
;
,- .
'
CommIssioners.
,CHICAGO,
M. &
St.
P. Ry. Co.
dfirer-it (JQurt, 8. 'D. iowa, 1.
February 2, 1889.)
Act ,Iowa, April provides ·for, tile regulation of transportatlon charges byreilroad companies, and for,a board of commissioners to fix reasOl)able charges. Section 17 requires said .board to make a schedule of maximum rates, which shall be deemed primafacie reasonable, Sections 18 and 20 ,provide tlJ.at any; pel(son may .complalll that the charglls made or published by any cpmPllny, are hlgher than .thosefixed,by the schedule, or that the latter are unreasonably, high, upon'which the. board s.hallinvestigate the complailJt. ',The d'ecision .made thereon, shrall' set out the maximum rates to becharged tj}erllarter. alld neitheJ! th. ,deCIsion nor the schedule therein con- ' 'lairied shall be limited to the caseco'mplained of, but shall extend to all such .rateabetwMn'poiiits in the state.li.hd to whatever part of the line of said road " i'within been ,f.uuj'withinthe;sc.ope of tbe investigation, Held, that the power to make a fult schedule is not only conferred by section 17, but is given also by said other sections, in case a complaint has. been made and investigated. . . ';..
RAILROAD' coMMISSTONEREl-REGtTI.ATXONOF CHARGES.
