
    Augusta H. Hanna, Plaintiff, v. The Connecticut Mutual Life Insurance Co., Defendant.
    (New York Superior Court—General Term,
    May, 1894.)
    A recovery cannot be had upon a policy of insurance containing a condition that it should be void if the insured “shall become so far intemperate as to impair his health," where the proofs of death show that the immediate cause of death was alcoholism and extreme prostration, and that the deceased used spirituous liquors to the extent and effect that it caused death; in such case it is immaterial that the cause of death was partly extreme prostration.
    Exceptions ordered to be heard in the first instance at General Term after nonsuit.
    
      Alexander Thawi, for plaintiff.
    
      John W. Bowen, for defendant.
   Sedgwick, Ch. J.

The action was upon a policy insuring the life of plaintiff’s husband.

The plaintiff was a witness in her own behalf. On her cross-examination she said that she had seen before a paper shown to her by counsel; that it was delivered to the defendant; that it was delivered for the puipose of proving the death of insured; that her answer applied to the whole paper, just as it was down.

The policy provided that if the insured shall become so far intemperate as to impair his health ” this policy shall become and be null and void. Among the papers referred to. was an affidavit which said that the remote cause of death was alcoholism; that the health of the deceased first began to' be affected six months before his death; that the immediate cause of death was alcoholism and extreme prostration. She. made oath that the answers made by her are true and full to the best of my belief.”

■ Of course, this contained an admission by her that intemperance had affected the health of the deceased, and would be conclusive upon her unless she could explain it to the satisfaction of the jury. Assuming, not deciding, that there was a. question as to the nature of the admission already alluded to, I think nothing can be said as to her admission of another kind. It was contained in an affidavit, one of the papers constituting the proof of death, made by the attending physician. of deceased. He swore that the remote cause of death was alcoholism; that the immediate cause of death was alcoholism and extreme prostration; that the deceased used spirituous liquors to the extent and with the effect that it caused death.

The affidavit was handed to the company as giving the facts-truly, and as against her it must be taken to be true, unless there is an explanation of a sufficient kind. Eo explanation was made, and on the trial there was effort to show that the cause of death was not alcoholism.

By the policy, it was avoided by intemperance that had injured the health of assured. It is, therefore, immaterial that the cause of death was partly extreme prostration.

The learned judge was correct in dismissing the complaint,

McAdam, J., concurs.

Plaintiff’s exceptions overruled and judgment upon order dismissing complaint directed for the defendant.  