Page:Federal Reporter, 1st Series, Volume 9.djvu/266

 BROCKWAY V. MUTUAL EBNBFIT LIB'E INS. 00. 251 �antl much evidence bearing thereon bas been given. These defences, (bo far as submitted to you,) and the evidence touching the same, both that on the part of the defence and that in rebuttal, deserve and should receive your careful and dispassionate Consideration. �The "declaration" made by Beckwith S. Brockway on March 8, 1868, upon the faith of which the policy in suit issued, contaius the following stipulation on bis part, viz. : �" That I do not, nor will I, practice any bad or vicions habit that tends to the shortening of lif e. And I hereby agree that the answer made by myself, my physician, and my frieud, shall be the basis of the contract between my- self and the said company, and if any untrue or fraudulent allegation is con- tained in said answer, or this declaration, all moneys which shall have been paid to the said company on account of the assurance to be made in conse- quence thereof, shall be forfeited for the beneflt of the company." �The answers, being thus made by the parties the basis of their agreement, became a material part of their contract, and absolutely binding upon the insured ; and if any of the answers are shown to be untrue, the policy is void. �The defendant (the insurance company) alleges that several of the answers are untrue. Here it is proper for me to say that, as the defendant makes this allegation, the burden of showing that the answers are untrue is, of course, upon the company. The defendant claims that the untruth of certain of the answers bas been shown by the evidence submitted to you. To the answers alleged to be untrue I will now direct your attention. �The tenth and eleventh questions addressed to Beckwith S. Brock- way relate to bis health; and he was asked whether be had had any of certain specified diseases or any sickness within the last 10 years. To the tenth question he answered: "Nothing but rheumatism, of a subacute type, at long intervais, and confined to the hands and finger joints." To the eleventh question he answered : "Eheumatism; noth- ing else." Upon the subject of bis health, Brockway's "friend," Silas E. Walton, answered : "I have known him to have slight attacks of rheumatism." And the physician, Dr. E. H. Little, answered: ' "Has occasionally had attacks of subacute rheumatism, seldom requiring medical interference, and not confining him to the bouse." �These answers are alleged to be untrue. I cannot recall any evi- dence which shows that Beckwith S. Brockway was ever affected with any of the diseases inquired of other than rheumatism. Whether, as affecting the risk under the policy in suit, there is any essential difference between rheumatism of a subacute type, and rheumatism ��� �