Page:Federal Reporter, 1st Series, Volume 9.djvu/268

 BEOCKWAY V. MUTUAIi BENBFIT LIFE INS. CO. 253 �sober and temperate ?" "Has he always been so ?" If either answer was false there can be no recovery, and there ought not to be. The truth of these answers was relied on by the Insurance company. Good faith required truthful answers in respect to so important a matter as the habits of the party applying for insurance touching the use of intoxicating drinks. �The words "sober and temperate" are to be taken in their ordinary sense. The language does not imply total abstinence from intoxi- cating liquors. The moderate, temperate use of intoxicating liquors is consistent with sobriety. But if a man use spirituous liquors to such an estent as to produce frequent intoxication, he is not sober and temperate within the meaning pf'this contract of insurance. �I have said that you should be governed, in respect to the matter imder consideration, by the weight of evidence. And here you should distinguish between the positive and negative evidence. If a number of credible witnesses testify that they have frequently seen a party intoxicated, or visibly under the influence of strong drink, their testi- mony is not to be rejeoted simply because an equal number of like credible witnesses testify that they never saw the party in such a condition. The testimony in the one case is positive, in the othcr negative, and the testimony of both sets of witnesses in the case sup- posed may be true. Many of the witnesses on the part of the plain- tiff say that they never saw Brockway so mueh under the influence of liquor that he could not attend to his ordinary business. This evidence, however, does not necessarily negative the immoderate use by him of spirituous liquors. �Again, some of the plaintitf's witnesses testify that Brockway's health was not impaired by his use of intoxicating liquors. But whether or not his health was impaired is altogether immaterial, if, in fact, he was immoderate or intemperate in his indulgence in spir- ituous liquors. �You are to say, upon the weight of the evidence, in view of the explanations and instructions I have given you, whether Beckwith S. Brockway was sober and temperate at the date of his answers, and had always been so. If you determine this question against the plaintiff that will end the case, and your verdict will be for the defend- ant. But if your finding on this part of the case should be in favor of the plaintiff, you will then pass to the consideration of another branch of the defence. �It is claimed that the policy in suit is what is known as a wagering policy, and therefore void. It is a general rule of law that no one can ��� �