
    Charles Moore, as Administrator, etc., of Daniel Wesley Moore, Deceased, Respondent, v. The Prudential Insurance Company of America, Appellant.
    
      IAfe insurance — meaning of .words “to excess” in the question “Heme you ever used liquor to excess?”—verdict that the insured had not used liquos' “ to excess” set aside as contran'y to the evidence.
    
    The phrase “to excess,” used in the following question contained in an application for a life insurance policy: “Have you ever used liquor to excess?” is equivalent to “excessively” or “intemperately.”
    The fact that the insured, who answered the question in,the negative, had been intoxicated at various times preceding the making of the application, does not establish, as matter of law, that the insured used liquor “to excess," but that question is one of fact for the determination of the jury.
    A verdict that the insured had not used liquor “ to excess ” should, however, be set aside as against the weight of evidence, where it appears that all of the witnesses sworn on both sides,- except the defendant’s solicitors, had seen the insured intoxicated on one or more occasions; that on four occasions prior to making the application he had been arrested for public intoxication, and three times, at least, had pleaded guilty to the charge, and that at another time he was unable to complete work which he had solicited, because of his intoxicated- condition.
    
      Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Saratoga on the 15th day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Foley, for the appellant.
    
      Fdgcvr T. Brackett, for the respondent.
   Houghton, J.:

The plaintiff’s intestate at the time of his death held two policies of life insurance issued by the defendant. The policies were for small amounts. Application for the first was made on the 30th of November, 1901, and application for the second on the 20th of November, 1902. In each application the insured was asked the following question: “Have you ever used liquor to excess?” to which he answered, “ No.” The sole defense is that these answers .were false. To establish its contention the defendant proved that within several years .preceding the applications for the policies the insured had been intoxicated at various times. The insured died in April, 1903.

The court left it to the jury to say whether the proofs showed that the insured habitually used intoxicating liquor to excess, and by their verdict they have found in the negative. The defendant insists that, as matter of law, the uncontradicted instances of intoxication avoided the policies. Whether this is so or not depends upon < the interpretation which should be put upon the language of the question. Manifestly the question does not mean a single or incidental usé of intoxicating liquors. The inquiry is not “ did the insured ever use intoxicating liquors,” but to what extent did he use them? The expression “to excess” is equivalent to “excessively” Or intemperately.” The object.of the inquiry also"throws light on the meaning of the language. It was not of such importance to the defendant, in determining "whether it would accept the risk, to learn whether the applicant had ever tasted intoxicating liquors, or allowed himself to become intoxicated on one,or moro occasions, as it was to ascertain whether or. not the insured was of temperate habit and did not habitually indulge in the use of intoxicants. Interpreting the question in this manner, as we think we must, it became a question of fact rather than one of law as- to whether the insured had prior to his applications habitually used intoxicating liquors to excess, or-' excessively, or intemperately. ( Van Valkenburgh v. American Popular Life Insurance Company, 70 N. Y. 605; McGinley v. United States Life Insurance Co., 77 id. 496; Meacham v. New York State Mutual Benefit Association, 120 id. 237; Northwestern Life Insurance Co. v. Muskegon Bank, 122 U. S. 501, 506; Mowry v. Home Life Insurance Company, 9 R. I. 346, 354.)

But the motion for a new trial should have been granted on the ground that the verdict was against the weight of evidence as to such intemperate and habitual excesses. All of the witnesses sworn on both sides, except the defendant’s solicitors, had seen the insured intoxicated on one or more occasions. On four occasions prior to the last application he had been arrested for public intoxication and placed in the lockup over night or for several hours, and three times, at least, pleaded guilty on being arraigned before the police magistrate. At another time he was unable to complete work which he had solicited, because of his intoxicated condition, and on promise of reform was re-engaged. With no further explanation of this state of facts than appeared, the finding of the jury was not justified, and the motion should have been granted.

All concurred ; Chase, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  