waranties, and that the answers of Miller to the questions propounded to him are mere representations.

If the instruction of the Court had reference to the answers to the printed interrogatories, it was proper. If it had reference to the declaration it was not error to the prejudice of the appellant. the only alleged misstatement, of which complaint is made, is contained in the answer of Miller to the questions asked him. Hence it becomes quite immaterial what construction is placed upon the statements in the declaration. As the Court did not err in giving the foregoing instruction, it follows that the fourth instruction asked by defendant, embodying a doctrine at variance with it, was properly refused.

In the case of Henry Wilkenson es. The Conn. Mutual Life Ins. Co., decided at the December term, 1870, it was said: that under the terms of the policy in that case, the answers to the questions contained in the application became warranties. That action was against the same company in which the decision of Miles vs. Conn. Ins. Co., 3 Gray, 580, was rendered-the policies of which, as we have seen, contain provisions differing widely from that now under consideration.

III. The Court further instructed the jury as follows: "It is for you to determine the materiality of the alleged misstatements, if any have been proven." This instruction we consider erroneous. The only misstatements complained of, are the answers of Miller to the following questions, to wit: "Is the party sober and temperate?" "Has he always been so?" A misrepresentation by one party of a fact specifically inquired about by the other, though not material, will have the same effect in exonerating the latter from the contract as if the fact had been material, since by making such enquiry he implies that he considers it so. In all jurisprudence this distinction is recognized. It is practically to written answers to written inquiries referred to in a policy. The rule is so because a party, in making a contract, has a right to the advantage of his own judgment of what is material, and if by making specific inquiry he implies that he considers a fact to be so, the other party is bound by it as such. 1. Phillips on Insurance, & 542, and cases cited. Also Campbell vs. New England Mutual Life Ins. Co., 98 Mass., 401. Representations of this kind differ from warranties in that a substantial compliance with them is sufficient to answer their terms. Whether there has been such substantial compliance, that is, whether the representation is in every material respect true, is a question of a fact for the jury. But it is not for the jury to say that the representation, though substantially untrue, is notwithstanding immaterial. An illustration will make plain the view of the Court. Suppose that in answer to a specific question the assured states his age is thirty years. It appears from the evidence that his age is a week or a month greater. The question would be a proper one for the jury to say whether the representation, though strictly and technically untrue, was not substantially

and materially true. But suppose it appears from the evidence that the age of the assured is fifty instead of thirty years. It is no the province of the jury to say that the representation though untrue is immaterial, as is well said in the case of Campbell vs. New England Mutual Life Ins. Co.; it is not within the province of the jury, under the guise of determining whether the statements of the applicant were materially false or untrue in some particulars, material to the risk, to find that diseases and infirmities were not materials to be disclosed, which the parties had by the form of the contract of insurance and of the contemporaneous written application conclusively agreed to consider material. See also Davenport vs. New England Ins. Co., 6 Cushing, 341. We are aware that there are authorities which sustain the instruction of the Court, but they seem not to have noticed the distinction here recognized, and are not, in our judgment, so much in accord with sound legal principles as those which support the converse doctrine.

IV. The defendant assigns as error the refusal of the Court to give the following instruction, to wit: "The proper evidence of the cause of a disease is the testimony of medical men, whose practice has been such as to enable them to speak as experts. Upon this point you have the testimony of Dr. Staples, who attended Miller in his last sickness, and whose practice for fifteen years, qualifies him to speak as an expert as to the cause of Miller's disease. If therefore you believe his opinion to be that the disease of which Miller died was caused by intemperance, from the use of intoxicating liquors, in other words if you believe his opinion to be that Miller died of congestion of the lungs and brain, and that such congestion was caused by irritation of the stomach, and that the irritation was caused by the use of intoxicating liquors, and if you find that this testimony is uncontradicted, then his opinion must prevail." Upon this branch of the case the Court instructed, as follows: "The opinion of a physician is competent evidence as to the cause of death." In this action of the Court there was no error. There was no testimony contradicting Dr. Staples as to the cause of Miller's death, but there was some testimony tending to impeach him. However slight the effect of this testimony, and however little the consideration to which it was entitled from the jury, still its weight is to be determined by them. It is not the province of the Court, by an instruction, to withdraw any proper testimony from the jury. Had this instruction been given, its effect might have been to lead the jury to believe that, as there was no other testimony than that of Dr. Staples as to the cause of death, his opinion must prevail, without regard to the testimony introduced for the purpose of impeachment. The instruction given by the Court contained the law as to the competency of opinion of the doctor, and very properly left the weight of this opinion to be determined by the jury.

V. It is claimed that the Court erred in giving the following instruction: "The defendant avers that there were certain untrue

and fraudulent statements contained in the application by James A. Miller-insists that only his statements in regard to his health and habits, should be inquired into. But as the contract was based upon the statements of the insured's physician and friend, as well as his own, the statements of all three should be considered in determining the question of fraud." This instruction is proper. The answers of the physician and friend constituted as much a part of the proceedings as those of Miller, and were equally entitled to the consideration of the jury.

VI. The giving of the following instruction is assigned as error: "If an insurance company issue a policy upon a risk greater than an ordinary one, with a full knowledge of all the facts, it cannot escape the binding obligation of its contract by pleading such fact, for this would simply be allowing insurers to commit a deliberate fraud upon the insured." The correctness of this instruction as an abstract proposition is conceded. It is said, however, that it assumes that the jury would be justified in finding from the evidence, that the company had full knowledge that the risk was greater than an ordinary one. We have before seen that the company is affected by the knowledge of its agent, acquired when actually engaged in procuring the application for the policy. The defendant, however, insists that there is nothing in the record which shows that either Case or Thornton, had knowledge that Miller's habits had been intemperate. We think that the testimony of Rogers as set forth in the statement of this case tends to establish this fact, and that the question of this knowledge was properly submitted to the jury.

VII. It is claimed that the Court erred in instructing the jury as follows: "If you find that Miller's death was produced by other causes, then you should find for the plaintiff on this branch of the case." "The policy must be construed strictly against the defendant, and if you find that Miller's death was only contributed to by the intemperate use of liquors, then you must find for the plaintiff' on this branch of the case." "In order to avoid the policy the defendant must satisfy you, by a preponderance of evidence, that the sole or paramount cause of Miller's death was caused by the intemperate use of intoxicating liquors." The defendant claims that "If intemperance shortens life, it is a cause of death within the meaning of the policy," and that the policy is thereby avoided. It rarely, if ever, happens that the intemperate use of intoxicating drinks is indulged in for a considerable period, without, to some extent, shortening life. The consequences of the construction contended for by the defendant would, therefore, be that an insurance company which had assured the life of one known to be intemperate, and which had charged a higher rate of insurance in consequence of such fact, could exonerate itself from liability, upon the policy, by showing that the life of the assured had been shortened by intemperance. A sound principle does not lead to consequences so unjust and unreasonable. A proximate cause of an

effect is that which immediately preceds and produces it as distinguished from the remote mediate or predisposing cause. When several causes contribute to death, as a result, it may be externally different to determine which was the remote and which was the immediate cause; yet this difficulty does not change the fact the death is to be attributed to the proximate and not the mediate cause. Nor is the difficulty in questions of this kind any greater than that which arises in questions of negligence, contributory negligence, and many others which are constantly the subject of judicial investigation. That the policy is to be construed strictly against the company, see Oather vs. Springfield Fire Ins. Co., 1 Sumner, C. C., 434; Wilson vs. Conway Fire Ins. Co., 4 R. I., 142.

The instruction given, we think, correctly reflected the law.

VIII. The deposition of the plaintiff was introduced as follows: "Two days before my husband died, and when Dr. Staples was first called, he stated that my husband had a severe attack of congestion of the lungs on the day following he repeated this same language, and stated that I need not be alarmed if my husband was delirious, as congestion of the brain usually accompanied congestion of the lungs, and continued to remark that my husband had done work enough to kill any ordinary man, or perhaps two men, and that he had no doubt injured himself by leaning against the desk."

The attention of Dr. Staples was directed, upon the cross-examination, to this conversation, and he stated that he thought he did not make the statements above detailed. The deposition was introduced for the purpose of impeachment.

It is claimed that the statements were mere matters of opinion, and that with respect to them the witness cannot be impeached. The witness, as an expert, testified to matters of opinion, and may be impeached by showing that, upon a former occasion, he had expressed a different opinion. Patchin vs. Astor Mutual Ins. Co., 13 Kernan, 268; Sanderson vs. Nashua, 44 N. H., 492.

IX. Some objections were made, upon the trial, to the introduction of testimony, which may be briefly considered.

The evidence tending to show that Case and Thornton had knowledge that Miller's previous habits had been intemperate, was proper for the reasons already considered. The evidence showing that the certificate of Rogers and Sprague were incomplete when delivered to the agents, was competent for the same reasons. The receipt for premium signed by Thornton as "General Agent" constituted a link in the chain of testimony tending to to show the extent of Thornton's authority, and, although alone it would not establish the extent of his agency, yet as bearing upon that question, it was properly admitted, and even if erroneously admitted, it was, under the views herein expressed, error without prejudice.

X. The errors considered, embrace substantially all those insistted upon in the agreement, as the cause must be reversed for the error already noticed it is not necessary to consider whether the verdict is sustained by sufficient testimony. For the error of the Court, in submitting to the jury the materiality of the misstatements alleged to exist in the answers of Miller, the judgment is reversed.

SUPREME COURT OF MISSOURI,

MARCH TERM, 1871.

Appeal from St. Louis Circuit Court.

THE CHARTER OAK LIFE INS. CO., Resp't,

.אין

MATILDA BRANT, App't."

Hitchcock & Lubke for Resp. Stagg. Napton & Clark for App't.

Bland & Thornton for Hurck &

WAGNER, J.

This was a proceeding in the nature of a bill of interpleader brought up by the plaintiff against Matilda Brant, widow of Henry B. Brant, deceased, and Hurck and Stagg, praying to be allowed to pay into court the proceeds of a certain policy of insurance on the life of Henry B. Brant, deceased, and asking that the defendants be required to interplead in order to have a determination of their respective rights. The court below adjudged that Hurck as trustee of Stagg was entitled to the money, and from that decision Mrs. Brant appealed. The policy was issued for five thousand dollars, payable to the sole and separate use of Mrs. Brant, after the the death of her husband. The annual premium was three hundred and forty-three dollars and ten cents, and the demurrer admits that the premium was paid by Brant. Brant in his lifetime borrowed money of Stagg and assigned the policy as collateral security. Mrs. Brant joining with him in the assignment, and he having died without making payment, the question now is whether the assignment concludes or bars Mrs. Brant from recovering the proceeds of the policy. With respect to reversionary choses in action and other reversionary equitable interests of the wife, in personal chattels, the doctrine has been for a long time well settled and in a manner most favorable to her rights, for no assignment by the husband, even with her consent and joining in the assignment, will exclude her right of survivorship in such cases, The assignment

* Decision Rendered March 27, 1871.