Holtum v. Germania Life Ins. Co.

HENSHAW, J.

This is an appeal from an order granting a new trial. The action was commenced by plaintiff as administrator of the estate of Karie Holtum, deceased, upon two certain policies of life insurance issued by the defendant upon the life of deceased. In defense it was charged that the defendant was induced to issue the policies by the false representations of the deceased. Trial was had before a jury. The verdict of the jury was for the plaintiff.

The representations which it is charged were false consisted of deceased’s answers to certain questions propounded to her in her application for insurance. The questions and answers are as follows: “Q. Do you use malt or spirituous beverages ?—A. Yes.—Q. If so, what kind and how much on the average on any one day Í—A. One glass' of "wine or beer.— Q. Have you always been temperate in the use of such beverages?—A- Yes.”

The court granted the motion for a new trial solely upon the ground of the insufficiency of the evidence to support the verdict, and that is the only ground here argued. Evidence oi witnesses was introduced showing that upon many different occasions during the years immediately preceding her death they had seen deceased “drunk,” and “under the influence of liquor. ’ ’ She had been seen drunk on the streets, drunk in a

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grocery store, intoxicated in her own home. Once she was so drunk on the sidewalk that she could not get up. Her death resulted from injuries received by falling down stairs. She was drunk upon the day she received her injuries. Her husband, plaintiff in this action, testified at the coroner’s inquest. He was asked, had she been in the habit of drinking to excess, and answered, “Well, I expect she got it somewhere”; and when further asked whether at the time of her receiving her injuries she was under the influence of liquor, he replied: “Well, she was sometimes. When she got

money

she would go out somewhere, but I didn’t know anything about it.” And still further questioned: “Was she not in the habit of drinking then?” answered, “I think she was. Yes, I think she was. ’ ’ Against this evidence of the defense there was the evidence, necessarily negative, of those who had seen the deceased upon many occasions, and had never seen her drunk nor under the influence of liquor.