The defendant issued two policies of insurance upon the life of Chas. E. McGinley for the benefit of his wife, Lydia A. McGinley, the plaintiff, upon their joint application in writing. The first policy Avas dated April 19th, 1866, for an insurance of 15000; the second Avas dated January 19th, 1871; which was a paid-up policy issued for $>100, the dividends then due on the first policy. The application above referred to Avas made the basis of the contract of insurance, Avhereby it Avas agreed that if any untrue or fraudulent allegation Avas contained in the application, or in answers to the questions annexed, all moneys paid for premiums should be forfeited. The policies contained the usual stipulations, that the same should be null and void if the application or declaration upon the faith of which the contracts were made should be found to be in any respect untrue.
Chas. E. McGinley died April 11th, 1875, at Celina, Ohio. Proof of his death and demand of payment were given and made, and defendant refused to pay the amount insured, on the ground that false ansAvers had been given to the following questions in the application for insurance:—
Q. Have your parents, brothers or sisters been afflicted Avith scrofula, pulmonary complaints, gout, insanity, or any other hereditary disease ?
Ans. No.
Q. Have you been afflicted at any time with insanity, gout, rheumatism, fits,—since childhood,—rupture, dropsy, spitting of blood, palpitation, diseases of the heart, lungs, liver, urinary organs, brain, or any serious disease ?
Ans. Have had rheumatism.
*392Q. Are the party’s habits of life temperate, or otherwise ?
Ans. Temperate.
Plaintiff obtained judgment against the defendant for $6007 45, from which, and the denial of a motion for a new trial, .this appeal was taken.
It is settled by authority that, the representations of the insured, upon the faith of which the policies were issued, are warranties, and if false or untrue in any particular the insured loses all benefit and forfeits all rights under the contract. (Valton v. National Fund Life Ass. Co., 20 N. Y. 32 ; Cushman v. U. S. Life Ins. Co., 63 N. Y. 404 ; Foot v. Etna Ins. Co., 61 N. Y. 571 ; Bliss on Life Insurance, 48 and 179, 2d edition ; Brennan v. Security Ins. Co., 4 Daly, 296.)
This case abounds with exceptions, the materiality of which depends upon the decision of the points raised by the answers to the questions Nos. 9, 12 and 14, above mentioned.
The motion for a non-suit was properly denied. Plaintiff had established a prima facie case, and at that "time no proof existed that McGinley was a man of intemperate habits at or about the time the policies were made. That he died in 1875 of diseases of the stomach and lungs, caused by intemperance, was insufficient to authorize the conclusion that his habits were intemperate in 1866 and 1871. The question at folio 144 was answered without exception, and as no motion was made to strike out the testimony the exception falls. The question at folio 148 was not only leading, but immaterial, and assumed a fact that had been proved. The objections at folios 154,155,157 and 163 were properly overruled. The exceptions 166 and 187 fell, for the testimony stood subject to the charge of the court, and that part of the answer to the seventh interrogatory, which was mere hearsay evidence, was properly stricken out.
The ruling at folio 193 was correct. Declarations made by McGinley a long time after the insurance for his wife’s benefit, as to his condition of health, were not competent to affect her rights. (Swift v. Mass. Mutual Life Ins. Co., 63 N. Y. 186 ; Edington v. Mutual Life Ins. Co. of N. Y., 67 N. *393Y. 192; Dilleber v. Home Life Ins. Co., Court of Appeals, 4 N. Y. Weekly Dig. 547.
Furthermore, the alleged admission related to a disease, not specifically named in the application, and it does not appear whether it was included in any of those mentioned.
There was no error in refusing the requests for special findings; the instructions given to the jury included all that was material to the issues involved, and were properly disposed of by the general verdict.
The exceptions at folios 194 and 195 will be hereafter considered. I think the rulings at folios 196, 197, 199, 202, 208, 229, 247 and 252 were correct, and for the reasons stated.
The answer to the third interrogatory was properly excluded; the testimony was necessarily hearsay, for the witness was but two years old at the time of the event of which she testified (fols. 273-274). The questions at 271 and 272 were immaterial and irrelevant, and were properly excluded. Nor do I find any error in the rulings at folios 320-1, 327, 337 and 368.
The verdict should not be set aside merely on the ground that it is against the weight of evidence (Silva v. Low, 1 John. Cas. 184 ; Barnwell v. Church, 1 Caines, 217 ; Bogert v. Morse, 1 N. Y. 337 ; Morse v. Sherrill, 63 Barb. 21), and the jury in this case have passed upon facts peculiarly within their province.
As to the falsity of the statements above referred to, that which relates to question No. 14 appears to have been mainly relied upon.
The fact that the father of McGitiley died of pneumonia after an illness of six days (fol. 96), would scarcely justify the conviction that such parent had been afflicted with that or any other hereditary disease within the meaning and intent of question No. 9.
To question No. 12 the applicant answered, “ Have had rheumatism.” • This was responsive; and if the defendant was not satisfied with it the policy should have been withheld until a more detailed and satisfactory answer was furnished. (Rawls v. American Mutual Life Ins. Co., 27 N. Y. 282.)
*394The interests as well as the merits of the case centre in the applicant’s response to question No. 14—that his habits of life were temperate.
The principle involved in the decision of this question is one of extreme delicacy and importance. It is not claimed that the mere use of alcoholic stimulants-constitutes intemperance. Nor have .we been referred to any fixed rulé or standard of such general application that we ■ can plainly discern the point where temperance ends. and inebriety begins. Necessarily then each case of this character must be determined upon its own particular facts. Slight indulgence may produce drunkenness in A, while repeated indulgences fail to effect B. It would thus appear that the test between sobriety and inebriety is the effect produced on each individual by the use of alcoholic liquors. 1 The court below recognized this principle, and left it to the jury to determine upon all the evidence whether or not MeGinley, at or about the time of his application for insurance, was a person of temperate habits. There was nothing in the charge of the learned judge calculated to prejudice or mislead the jury.
The defendant’s counsel takes exception to that portion of it which predicated the fact of McGinley's intemperate habits upon his capacity to attend to business, and his induk gence to such an extent as would impair his constitution or general health. These facts were but the indicia of the main fact, which was left entirely and exclusively to the jury.
I have examined all the exceptions m the case, and the authorities by which they are sought to be sustained, and am of opinion that they should be overruled and judgment of affirmance ordered.