Evans v. Modern Woodmen of America 147 Mo. App. 155

W. C. EVANS, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant.

St. Louis Court of Appeals.

Argued and Submitted February 7, 1910.

Opinion Filed February 21, 1910.

1. FRATERNAL BENEFICIARY ASSOCIATIONS: Action on Certificate: Defenses. Mutual benefit insurance societies are not subject to the Missouri laws regulating defenses by old-line companies, and are entitled to the application of the doctrine of representations and warranties in all its rigors of interpretation as a defense to an action on their certificates.

2. -: -: --: Age of Insured: Misstatement in Proof of Loss: Explanation: Question for Jury. In an action on a mutual benefit certificate, it was shown the beneficiary stated in the proofs of death that insured was horn on December 22, 1880, whereas his application for membership stated he was born on December 22, 1881.. The beneficiary testified that “he couldn’t be positive as to the date of birth of insured, he had made no inquiry to ascertain it and had no means of knowing except from memory.” Meld, there was enough before the jury, taking into consideration the application of insured and the testimony of the beneficiary, to warrant them in determining whether or not a misstatement as to his age had been made by insured in his application, the real fact to determine being the age of insured, not what someone else, even the beneficiary, may have said about it.

3. -: -: Forfeiture of Membership: Uncontradicted Evidence: Directing Verdict. In an action on a mutual benefit certificate, where the uncontroverted evidence shows a forfeiture of membership, it is the duty of the trial court to direct a verdict for defendant.

4. -: -: Intemperance of Insured: Intoxication at Time of Death: Question for Jury. In an action on a mutual benefit certificate, whether the certificate was void by reason of the alleged intoxication of insured at the time of his death and by reason of his alleged intemperance during the time he was insured, was for the jury to determine, the evidence being conflicting.

5. -: -: -: Construction of Certificate: “Intemperate” Defined, Where a mutual benefit certificate provided for forfeiture in case insured should become intemperate in the *156use of intoxicating liquors, the word “intemperate” should be held to mean not the excessive or habitual use of intoxicating liquors, but the habitually excessive use thereof.

6. --; -: -: Failure of Local Camp to Prefer Charges: Evidence. Where, in an action on a mutual benefit certificate, defendant claimed that insured was intoxicated at the time he was killed and that he was intemperate in the use of liquors, in violation of the policy, evidence that at no time had insured been tried by his local camp for intemperance or any other offense was incompetent.

Appeal from St. Francois Circuit Court. — H.on. Chas. A. Killian, Judge.

Affirmed.

Benj. D. Smith and Benj. H. Marbury for appellant.

(1) The contract herein sued on is a contract between the member and the society and includes the application, the certificate and the constitution and bylaws of the defendant. 3 Am. and Eng. Ency., of Law, Yol. Ill, (2 Ed.), p. 108, and cases cited therein; Bacon on Benefit Societies, secs. 37, 91,116; Niblack on Benefit Societies, sec. 136. (2) A warranty is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfillment of which the validity of the entire contract depends. The stipulation is considered to be on the face of the policy, although it may be written in the margin or transversely, or on a subjoined paper, referred to in the policy. Angelí on Insurance, sec. 140; Bacon on Benefit Societies, sec. 194; 3 Cooley’s Briefs on the Law of Insurance, p. 1932; Joyce on Insurance, sec. 1944; Bliss on Life Insurance, sec. 45; May on Insurance, sec. 156, and authorities cited in above texts. (3) The answers in the application for the benefit certificate herein sued on are warranties. McDermott v. Modern Woodmen of America, 97 Mo. App. 636, 71 S. W. 833; Finch v. Modern Woodmen of America, 113 Mich. 646, *15771 N. W. 1104; Genrow v. Modern Woodmen of America, 114 N. W. 1009; Bumgart v. Modern Woodmen of America (Wis.), 55 N. W. 713; Modern Woodmen of America v. Yon Wald (Kan.), 49 p. 782. (4) As a warranty is in tbe nature of a condition precedent to tbe validity of a policy, and must be literally true, if tbe fact warranted is not true, there is a breach of warranty. It follows as a matter of course, that a breach of warranty will avoid tbe policy. This principle is so fundamental that it scarcely needs tbe citation of authorities to support it. 3 Cooley’s Briefs on the Law of Insurance, p. 3.950, and cases cited. (5) In view of the general principle that tbe materiality of tbe fact is wholly unessential in tbe case of a warranty, it is readily deduced that where there is a breach of warranty the policy is avoided, though the statement on which the breach is predicated is in no way material to the risk. 3 Cooley’s Briefs on the Law of Insurance, p. 1951; 3 Joyce on Insurance, sec. 1962; McDermott v. Modern Woodmen of America, 71 S. W. 833; Beard v. Royal Neighbors of America, 89 Pac. 83. (6) If an answer which the applicant warrants is literally true is false the contract is annulled, whether the false statement was fraudulently or innocently made. 3 Joyce on Insurance, sec. 1964; May on Insurance, sec. 156; 1 Bacon on Benefit Societies, sec. 197; 3 Cooley’s Briefs on the Law of Insurance, p. 1954; McDermott v. Modern Woodmen of America, 71 S. W. 833; Modern Woodmen of America v. Yon Wald, 49 Pac. 782. (7) Proofs of death furnished to the Society are prima-facie evidence of the facts therein stated and are conclusive unless the beneficiaries show that the statements made therein were erroneous or were given through mistake. Almond v. Modern Woodmen of America, 113 S. W. 695; Insurance Co. v. Newton, 22 Wall. 32; Hassencamp v. Life Ins. Co., 120 Fed. 475; Hanna v. Life Ins. Co., 44 N. E. 1099; Walther v. Insurance Co., 4 Pac. 413; Modern Woodmen of America v. Von Wald, 49 Pac. 782; Hart *158y. Trustees, etc., 84 N. W. 851; 3 Elliott on Evidence, sec. 2387; 2 Wigmore on Evidence, p. 1265. (8) Where as in this case the admission contained in the proofs of death, which was not shown on the trial of the case to have been erroneous or to have been given through mistake, showed that Evans was born on the 22d day of December, 1880, instead of the 22d day of December, 1881, as warranted in his application for membership, it became the duty of the trial court to direct a verdict for the defendant on the ground that, under the terms of the contract sued on, there was a fatal breach of warranty; the court having refused to so direct the jury, the Appellate Court will on appeal reverse the judgment. Reicfienbach v. Ellerbe, 115 Mo. 588, and cases cited therein; Lavin v. Grand Lodge, 104 Mo. App. 1; Carroll y. Rapid Transit Co., 107 Mo. 653. (9) If but one natural and rational inference can be drawn from the undisputed facts, it is the duty of the Court to treat the matter in question as one of law and direct the proper verdict. Hardinger y. Modern Brotherhood, 103 N. W. 74; Somerville v. Knights Templar, 11 App. D. C. 417; White v. Ins. Co., 105 N. Y. S. 87; Sovereign Camp v. Hruby, 96 N. W. 998; Clemens v. Royal Neighbors, 103 N. W. 402; Pagett v. Connecticut, etc., Co., 66 N. Y. S. 804; Seybold v. Supreme Tent, 83 N. Y. S. 149; John v. Northwestern, etc., Assn., 63 N. W. 276. (10) The court’s instruction (D) that the term intemperate meant “the excessive or habitual use of intoxicating liquor” was erroneous. The word “intemperate” means any immoderate or excessive use of intoxicating liquors, and the element of “habitual use” should not have been included in said definition. Defendant’s instruction No. 2 on this question, refused by the court, was correct and should have been given. ' Beller v. Knights Pythias, 66 Mo. App. 499; Zeigler v. Commonwealth, 14 Atl. (Pa.) 237; Miller v. Insurance Co., 31 la. 21, 7 Am. Rep. 122, 34 la. 222; Insurance Co. v. Davey, 123 U. S. 739, 31 L. Ed. 315; Insurance Co. v. Ward, 140 U. S. 76, *15935 L. Ed. 371; Marcoux y. Society of Beneficence, St. John Baptist, 39 Atl. (Me.) 1027; Mnllinix v. People, 76 Ill. 211. (11) When a person who is intoxicated commits, without provocation, an assault on another, the only reasonable inference to be deduced from said actions is that the commission of said assault was due to intoxication, and when a mortal combat ensues as the result of said assault, and the person who committed said assault is killed, his said death can properly be said to have resulted from his intemperate use of intoxicating liquors, within the provisions of the contract providing for forfeiture from death resulting “directly or indirectly from his intemperate use of intoxicating liquors.” Miller v. Ins. Co., 34 la. 222. (12) It is well settled in this State that the provisions in an insurance contract avoiding liability if the insured shall come to his death “in consequence of any violation, or attempted violation of the laws of any State;” relates to a crime, the character of which directly increases the risk, regardless of whether said crime is a felony or a misdemeanor. Wolff v. Ins. Co., 5 Mo. App. 236; Brown v. Supreme Lodge K. of P., 83 Mo. App. 633; Davis v. Modern Woodmen of America, 98 Mo.' App. 713, 73 S. W. 923. (13) And where, as in this case, the insured was the aggressor and committed an unprovoked assault upon the man who killed him, it is not essential for the defendant to prove that his killing was justifiable homicide. It is enough if the act is unlawful in itself, and the consequences flowing from it are such as might have been reasonably expected to happen, for in such a case the ultimate result is traced back to the original proximate causé. Davis v. Modern Woodmen of America, supra; Ins. Co, v. Seaver, 19 Wall. 531, 2 L. Ed. 155; Murray v. Ins. Co., 96 N. Y. 614, 48 Am. Rep. 658; Bloom v. Ins. Co., 97 Ind. 478, 49 Am. Rep. 469. (14) It was error to instruct the jury that unless they found that Evans’ death occurred as the “ordinary consequence” of the assault committed on Holly, they should find for the plaintiff. *160Bloom y. Ins. Co., (supra). (15) Notwithstanding the fact that the burden was on the defendant to establish that John Evans’ death was in consequence of the violation of the law of Missouri, the defendant was not required to prove that fact beyond a reasonable doubt, but merely by a preponderance of the evidence. The same rule applies with relation to the necessity, if this court holds that it be a necessity, of establishing that his death was due to a justifiable homicide. Marshall v. Ins. Co., 43 Mo. 586; Edwards v. Knapp, 97 Mo. 432; Nichols v. Winfren, 79 Mo. 544; Culbertson v. Hill, 87 Mo. 544. (16) The question of the competency of evidence of experiments is one of law for the court to determine, and such experiments, evidence of which is sought to be introduced, must have been made under circumstances and conditions similar to those constituting, as it were, the premises from which the original event is alleged to have been the conclusion. 12 Am. and Eng. Ency. Law (2 Ed.), pp. 409 and 406, citing; Eailroad v. Champion, 32 N. E. (Ind.) 874; Tesney v. State, 77 Ala. 33.

W. L. Hensley and Chas. C. Bevelle for respondent.

(1) The evidence wholly fails to establish that the decedent’s age was not as represented in his application for membership. Lemen v. Ins. Co., 49 La. Ann. 1191; Baldi v. Ins. Co., 24 Pa. Sup. Ct. 275. In considering this phase it must also be remembered that the rule in this class of cases is that forfeitures, since they are uniformly in the interest of the insurer which has received its benefits from the contract, are looked upon with disfavor, and every reasonable doubt is to be resolved against them. Nothing is to be taken as conceded but what is given in unmistakable terms, or clearly proven to the satisfaction of reasonable minds. Lewine v. Superior Lodge K. of P., 122 Mo. App. 560; Foglesong v. M. B. of America, 121 Mo. App. 553; Loesch v. Union *161C. & S. Co., 176 Mo. 666; Seibert y. Chosen Friends, 23 Mo. App. 168. If this conrt were at liberty to weigh the evidence, we feel no hesitancy in saying that it would find no fault with the verdict on this question of fact, since no other conclusion could be intelligibly reached. Among other authorities supporting our views in this respect, we call attention to the following: Home Benefit Assn. v. Sargant, 142 U. S. 691; Ins. Co. v. Stibble, 46 Md. 302; Beckett v. N. W. Masonic Aid Assn., 67 Minn. 298; Wells v. Ins. Co., 19 App. Div. (N. Y.) 18. (2) The evidence abundantly supports the jury’s finding that the insured did not come to his death in consequence of the violation, by him, of the laws of the State. In construing this ground of forfeiture, it has been uniformly held that the intemperate use of intoxicating liquor must have been the direct cause of the death. Miller v. Ins. Co., 31 la. 235; Ins. Co. v. Stibble, 46 Md. 314. (3) The court committed no error in its rulings on the admission and exclusion of evidence. Defendant complains first, because its witness, Brown, who for six years had been clerk of the lodge, was permitted to state whether or not during the life and membership of deceased he was tried by the order on the charge of the intemperate use of intoxicating liquor. Plaintiff had a right to know whether, in fact, deceased had been tried by the lodge, since, if he had and was not suspended, this amounted to a waiver of forfeiture on that account. Callies v. Modern Woodmen, 98 Mo. App. 526; Lewis v. Assn., 76 Mo. App. 586; Frame v. Woodmen, 67 Mo. App. 127. After the witness testified that deceased had not been tried on this charge, defendant was evidently satisfied, since it did not move to strike out the question or answer. All objections, therefore, were waived. State v. Bateman, 198 Mo. 223; Waddell v. Railroad, 113 Mo. App. 687.

*162Statement.- — Action by plaintiff on a benefit certificate, taken out by one John Samuel Evans, hereafter referred to as John Evans, or Evans, on his life, loss payable in case of death to plaintiff, who is his brother. It is averred in the petition that John Evans kept and performed all the terms and conditions of the policy; that up to the time of his death he had paid all the assessments and dues levied, and that the policy was in full force at the time of his death; that he -died on the 22d of February, 1908; that plaintiff had furnished due proofs of loss to the defendant, whereby it became liable to him in the sum of $2000, and that not being paid he sues.

The answer, averring that plaintiff is a fraternal beneficial society, organized, incorporatéd and existing under and by virtue of the laws of the State of Illinois, relating to fraternal beneficial societies, and duly authorized to transact business as such in the State of Missouri, under and by virtue of the laws of this State, relating to fraternal beneficial societies, and admitting that John Evans made application for membership and that a membership certificate was issued to him, loss payable on his death to the plaintiff, and denying all the other allegations in the petition, and setting up the terms and conditions upon which membership is granted and benefit certificates issued in its order, and after averring that John Samuel Evans, when he became a member and received the certificate, was subject to all the conditions imposed on members by the constitution, by-laws and articles of organization of the company, and expressly agreecl in his application for membership that all statements made therein were warranties, sets up as the first affirmative defense, that contrary to the conditions and provisions of the contract between John Samuel Evans and the defendant organization, he (Evans) had come to his death in consequence of a violation by him of the laws of the State of Missouri, in that he made an assault upon one Holly, and that said *163Holly, in order to defend himself and while defending himself from the assault of Evans, had shot and killed Evans; that the assault was contrary to and in violation of the laws of the State of Missouri; that Evans came to his death in consequence of that violation and that by reason thereof the benefit certificate sued on became null and void, and defendant was thereby released and discharged from any and all liability thereon. As a second affirmative defense, it is set up that John Samuel Evans, contrary to the terms and conditions of his membership in the order, became and was intemperate in the use of intoxicating liquors, by reason whereof the benefit certificate sued on became and was null and void. For a third affirmative defense, ifi is set up that John Samuel Evans came to his death as. a result of the intemperate use of intoxicating liquors by him; that while intoxicated and under the influence of intoxicating liquors, he had engaged in the controversy with and committed the assault on Holly, before referred to, and that Holly, in defending himself, had shot Evans, and by reason thereof the benefit certificate was forfeited and became null and void. The fourth, affirmative defense set up is that in his application for membership John Samuel Evans stated that he was born in Crawford county, Missouri, on the 22d day of December, 1881; that that answer was false and untrue, said Evans having in fact been born prior to that date and that by reason of this false and untrue answer, a breach, of the warranty as to the truth of statements contained in the application for membership had been committed and the benefit certificate forfeited.

The reply was a general denial.

At the trial of the cause before the court and jury, the certificate of membership, which is in ordinary form, was introduced by plaintiff, as also the application for membership, by which latter it appeared that John Samuel Evans stated that he was born in Crawford county, Missouri, on the 22d of December, 1881. The applica*164tion contained the usual covenants and warranties exacted by this class of societies. Evidence was introduced of the fact of the death of John Samuel Evans, which occurred on the 22d of February, 1908. The evidence also showed that proofs of death of Evans had been duly forwarded to the proper officer of the defendant. Plaintiff thereupon rested.

The defendant introduced a stipulation, agreed to by counsel for the respective parties, to the effect that the defendant is a fraternal beneficial society, organized, incorporated and existing under and by virtue of the laws of the State of Illinois, relating to fraternal, beneficial societies; that during all the times mentioned in plaintiff’s petition, defendant was a fraternal beneficial society, as defined by the statutes of Missouri relating to fraternal beneficial societies; that during all of said times the defendant was and is duly and regularly authorized to transact business as a fraternal beneficial society, under and by virtue of the laws of the State of Missouri, as found and contained in article 11, chapter 12, of the Revised Statutes of Missouri (1899); that-the exhibit attached to the stipulation is a correct copy of the by-laws of the defendant, in force and covering the period involved in this case, each party reserving the right to produce such parts of the by-laws as they chose without further proof of authenticity than in the stipulation. Under the stipulation, the defendant then offered section 11 of the by-laws, which is a prohibition against intemperance and is to the effect that‘if any member of the society shall become intemperate in the use of intoxicating liquors or if his death shall result directly or indirectly from his intemperate use of intoxicating liquors, the benefit certificate shall become void. The original application of John Evans for membership, which had heretofore been introduced by plaintiff, was introduced and read in evidence by defendant. Proofs of death which had been forwarded to defendant were also introduced, which consisted of the affidavit *165of tbe plaintiff, W. C. Evans, that be bad known deceased for 27 years; that be “was born at Crawford county, in tbe State of Missouri, on tbe 22d of December, 1880, and was at tbe date of bis decease, wbicb occurred on the 22d of February, 1908, 27 years and two months old.” Along with tbe proofs of death was tbe certificate of tbe physician, that John Evans bad come-to bis death as tbe result of gunshot wounds inflicted-on him at Doe Run, in Missouri, on tbe 22d of February,. 1908. Plaintiff also in bis affidavit stated that be was. tbe person named in the membership certificate as beneficiary; that be was related to -the deceased as brother* Accompanying tbe proof of death forwarded to defendant, and on blanks furnished to make proof, were instructions, among others, to tbe effect that before claims could be paid, in case an inquest had been held on tbe deceased, a duly authenticated and certified copy of tbe coroner’s proceedings, as well as all evidence and tbe verdict, must accompany tbe proofs. After the introduction of tbe affidavit of plaintiff, tbe defendant offered in evidence the coroner’s certificate covering tbe proceedings at tbe inquest on tbe body of John Samuel Evans, wbicb, among other things, contained tbe verdict of tbe coroner’s jury, to tbe effect that tbe deceased came to bis death from a gunshot wound received from a revolver in tbe hands of one Holly, and that tbe death took place in Holly’s restaurant in Doe Run, February 22, 1908. When this coroner’s certificate was introduced along with tbe other proofs of death, plaintiff objected to its admission. Tbe court overruled tbe objection as to all that part of tbe proofs of death, except tbe verdict of the coroner’s jury, as to wbicb tbe court indicated, by its ruling, that it was not admissible, but made no definite ruling. Whereupon defendant asked leave to recall a witness, who testified that be was the-secretary of tbe camp of tbe order at Doe Run; that plaintiff bad brought in proofs of loss wbicb did not include tbe coroner’s verdict; that be (witness), as tbe *166clerk of tbe local camp, bad obtained tbe copy of tbe coroner’s verdict and attached it to tbe proofs wbicb be sent on, but did not know whether plaintiff was aware of this or not. Defendant then read from its by-laws sections requiring tlxe furnishing of this certificate of tbe coroner and one of the sections providing that tbe clerk of tbe local camp is made tbe agent of the camp and not tbe agent of tbe bead camp in transactions with tbe order. Defendant again offered in evidence tbe certified copy of tbe coroner’s verdict attached to tbe proofs of death. Tbe objection being renewed and sustained by tbe court, defendant duly excepted. Defendant then introduced oral evidence tending to show the circumstances under which John Samuel Evans came to bis death; that be was under tbe influence of liquor when be went into tbe restaurant kept by one Holly at Doe Run. Holly was in tbe front room, behind tbe counter. Evans asked him for lunch, wbicb Holly refused to serve, Avhereupon Evans slapped Holly Avith bis open band, a bard lick. Holly ordered' Eauins out of tbe .place and walked around to tbe end of tbe counter, shook his hand at Evans and told him to go out, that be didn’t want any trouble; ordered Evans out. When Evans didn’t go, Holly threw a bottle at him. Evans dodged tbe bottle and made a rush toward Holly, who was about six feet aAvay. Evans threw up bis left band and struck Holly, who fell down. Evans then got on top of Hlolly and they were both lying on the floor struggling. While they were on tbe floor, Holly shot twice, inflicting the wound which resulted in Evans’ death. This is rather a brief and possibly not an accurate statement of tbe evidence for defendant, but sufficient for all purposes as showing tbe facts as in evidence for defendant; that is to say, that John Evans was intoxicated and brought on tbe quarrel with Holly; that in tbe scuffle which ensued between Holly and John, tbe latter was shot twice by Holly, and from these shots, either of *167which it is in evidence would have proved fatal, he died. Evidence tending to show the habit of Evans as to drinking was also offered and introduced on part of defendant, the tendency of which was to prove that he was intoxicated at the time of the difficulty in which he met his death, and that on several occasions prior thereto he had been under the influence of liquor. Defendant thereupon rested its case, and plaintiff, in rebuttal, introduced witnesses who gave evidence tending to show that Holly was the aggressor in the fight; that Evans was not intoxicated and that at the time of his death, he was neither armed nor the aggressor in the fight. The plaintiff himself on the witness stand and in rebuttal testified that he made the statement which he had sworn to before a notary public, in relation to the age of his brother John Samuel. To quote from the .testimony of plaintiff in full on this subject, he testified that he had gone before a notary, who filled out the blank proofs. That he told the notary, that “to the best of my knowledge he (John S. Evans) was born in 1880; I couldn’t be positive that is the date, that was my impression. I have no means of knowing except from memory. I haven’t made any inquiry to ascertain his true age. I don’t know any more now than I did then. I couldn’t be positive about it, it was wholly a matter of impression with me.” On cross-examination he testified: “I made the affidavit in the death proofs, and at that time the statement contained therein that my brother John Samuel Evans was born on the 22d day of December, 1880, was my best impression.” In rebuttal, a witness was asked by counsel for plaintiff whether or not at any time from the time the policy was issued until the time of his death, John Samuel Evans was tried by the local camp upon the charge of intemperate use of intoxicating liquors or any other charge. This was objected to by the defendant as not an issue in the case and not tending to prove any issue in the case, and as improper and incompe*168tent and not proper in rebuttal. Tbe objection was sustained by tbe court. Tbe witness was then asked whether or not at any time from tbe time tbe policy was issued until tbe time of bis death, Evans was tried by tbe local lodge upon tbe charge of tbe intemperate use of intoxicating liquors or any other charge. This was objected to for tbe reasons above stated, and for tbe further reason that it did not tend to prove any issue of tbe case, is not in rebuttal, no waiver having been plead by reply, and therefore not competent. Tbe court remarked that if tbe lodge bad not bad such a trial, it would not be competent, so that be would let the question go in; “will let witness answer that question from that view of tbe case.” Exception was duly saved by the defendant, the further objection being-made that it is not responsive to any issue in tbe case, whereupon tbe witness answered that insured was not so tried.

At tbe close of tbe evidence, defendant asked an instruction directing a verdict in its favor which tbe court refused to give and defendant duly saved its exception.

At tbe request of plaintiff tbe court gave instructions A, B, C, D and E. Instruction A was a general one, covering tbe issue of tbe policy, tbe death of Evans, furnishing of proofs of loss, and instructing tbe jury that if they found from tbe evidence in tbe case that John Samuel Evans and tbe plaintiff herein kept and performed all tbe terms and conditions of tbe policy and that defendant bad failed to pay plaintiff two thousand dollars, then plaintiff is entitled to a verdict for that amount, with interest at tbe rate of six per cent per annum from tbe date of tbe demand of payment by plaintiff until date of tbe trial. While tbe giving of this instruction is excepted to by tbe defendant, no error is assigned to it in tbe assignment of errors lodged with this court, so that it is unnecessary to set it out with more particularity. Instruction B *169is substantially to tlie effect that if the jury found from the evidence in the case that John Samuel Evans assaulted Holly, “yet before you can find the issues in this cause for the defendant on that ground alone, you must further find and believe from the evidence that said assault was in violation of the laws of this State, and that the death of said John Samuel Evans occurred as the ordinary consequence of said assault; and unless you do so find and believe, your finding on this defense will be for the plaintiff.” Instruction C is, in substance, that although the jury might find and believe from the evidence in the cause, that after the issuance to Evans of the insurance policy sued on and before his' death, Evans used and drank intoxicating liquors, yet the jury will not find the issues for the defendant on that ground alone, unless they further found and believed from the evidence that Evans became intemperate in the use of intoxicating liquors. Instruction D told the jury “that by the term ‘intemperate,’ as used in these instructions, is meant the excessive or habitual use of intoxicating liquor.” Instruction E told the jury, substantially, that the statement contained in the affidavit of the plaintiff in the proofs of death furnished by him to defendant with relation to the date of the birth of John Samuel Evans, “is an admission by the plaintiff as to the date of the birth of said John Samuel Evans, and establishes said fact unless said statement is explained or overcome by the evidence in this cause to your satisfaction.”

At the instance of the defendant the court gave ten instructions, numbered from 5 to 14, both inclusive. Instruction No. 5 told the jury that the application, the benefit certificate and the by-laws constitute the contract sued on and each were mutually binding upon the plaintiff and the defendant. Instruction No. 6 told the jury that if they believed that John Samuel Evans committed the assault on Holly, without provocation, and that Holly, in order to defend himself from the assault, shot and killed Evans, the verdict must be for *170defendant. Instruction No. 7 told the jury that if they found from the evidence that John Samuel Evans, without provocation, assaulted Holly, and that Evans engaged in a combat with Holly, in the course of which and in order to defend himself, Holly shot and killed instruction told the jury that if they found from the Evans, the verdict must he for defendant. The eighth evidence that Evans, without provocation, struck Holly, his act, under the laws of this State, constituted an assault and is such a violation of the laws of the State as is contemplated in the contract sued on. The ninth instruction told the jury that if they found that the death of Evans occurred in consequence of the assault, the verdict must be for the defendant. The tenth instruction told the jury that if they believed from the evidence that after the issue of the benefit certificate to him, Evans became intemperate in the use of intoxicating liquors, their verdict must be for the defefidant. The eleventh instruction told the jury that if they found from the evidence, that on the 22d of February, 1908, and immediately prior to his death, Evans was intoxicated, and that his death was directly or indirectly duel to intoxication, their verdict must be for the defendant. The twelfth instruction told the jury that if they found' that on the 22d of February, Evans was intoxicated and while intoxicated engaged in a combat with or committed an assault on Holly and while defending himself, Holly killed Evans, then the verdict must be for the defendant. Instruction numbered 18 told the jury that if they found from the evidence that the statement of the insured, John Samuel Evans, in his application for membership in the defendant order, that he was born on the 22d of December, 1881, was not literally true, their verdict must be for defendant. The fourteenth instruction told the jury that while the burthen is upon the defendant to establish either or all of the defenses pleaded in its answer, “nevertheless it is only necessary for the defendant to establish said defenses, *171or either of them, to the reasonable satisfaction of the jury, by a preponderance or greater weight of the evidence.”

The defendant further asked instructions numbered 1, 2, 3 and 4. Number 1 is to the effect that on the evidence in the case, the jury must find for the defendant. In number 2, the defendant asked the court to instruct the jury that the term “intemperate in the use of intoxicating liquors,” as used in the contract sued on, “refers to the excessive use of intoxicating liquors by the insured, and that the use of intoxicating liquors to such an extent as to cause intoxication or drunkenness, is the intemperate use of intoxicating liquors within the meaning of the contract herein sued on.” In the third instruction, the court was requested to instruct the jury that if they found that on various occasions subsequent to the delivery to him of the benefit certificate sued on, Evans was drunk or intoxicated from the use of intoxicating liquors, the verdict must be for the defendant. In the fourth instruction the court was asked to direct the jury “that the statement contained in the affidavit of the plaintiff in the proofs of death furnished by him to the defendant herein, with relation to the date of the birth of said John S. Evans, is an admission by said plaintiff as to the date of the birth of said John S. Evans and binding upon him, and establishes on its face that the said John S. Evans was born on the 22d of December, 1880, and that the answer in his said application for membership, that he was born on December 22, 1881, was untrue.” The court refused these four instructions, defendant excepting.

At the conclusion of arguments by counsel, the jury returned a verdict in favor of plaintiff for two thousand dollars, with interest from the 22d of March, 1908, a total of $2051.65. Defendant in due time filed its motion for a new trial, as well as a motion in arrest, both of which were overruled, defendant excepting, and in due time applying for an appeal and filing its bond. *172bag brought the cage here by appeal.