This is an action on a beneficiary certificate, insuring the life ¿f William S. Teets, in the :sum of $2,000, and made payable to his wife, Sarah E. Teets. The husband died April 25, 1894, and the wife shortly thereafter, to wit, June 23, 1894. This action is prosecuted by the administrator of the wife, Sarah E. Teets. The defense is based on a by-law of the defendant (and which by the terms of the policy is incorporated in and forms a part thereof), which, in ■effect, provides that it shall not be liable for death losses arising from certain causes, among which is “where the death was caused, or superinduced by the use of intoxicating liquors.” It was alleged in the answer, and there was evidence tending to support the allegation, that the death of said Teets was caused, or super-induced, by the use of intoxicating liquors.
On a trial by jury, there was a verdict and judgment for plaintiff and defendant appealed.
It is first complained that the court, at the trial, •erroneously refused to allow the defendant to open and ■close the argument to the jury. And under the state •of the pleadings this complaint is well founded. *452The answer admitted the allegations‘of the petition, the execution of the policy, death of the party whose life was insured, proofs of loss, etc., but pleaded in defense the violation of a certain condition. This placed the burden of the issue involved on defendant; and the onus being on the lodge, it was, on the clearest principles, entitled to the opening and closing. But we should be slow to reverse the judgment on that account alone, in the absence of a showing that defendant was prejudiced thereby'.
However, we find in the record ■ an error against the defendant, more serious in .its nature, and which must work a reversal. The defendant asked the court to instruct the jury “that if they believe from the evidence that the death of William S. Teets was caused or-superinduced by his use of intoxicating liquors,” etc., they should return a verdict for defendant. The court refused this instruction, as asked, and, against defendant’s objection, modified it and gave it in this form: “That if they believe from the evidence that the death of William S. Teets was substantially caused, or superinduced by his immoderate use of intoxicating liquors,” then they should find for defendant. We can perceive no reason to condemn the insertion of the word “substantially,” since the law is only concerned with matters of substance. But by interpolating the word “immoderate,” as qualifying the use of intoxicating liquors by Mr. Teets, the court materially changed the terms of the contract of insurance. By the terms of the insurance contract, the policy (or beneficiary certificate) was to be’ void, and the defendant was to pay nothing, if Teets’ death was caused or superinduced (that is, brought upon or added to) by the use of intoxicating liquors — and that, too, whether such use was moderate in extent, or immoderate or •excessive. Under the instruction given, the jury may *453have believed that the use of intoxicating liquors by Teets caused or superinduced his death, and yet, if they thought that he was only a moderate drinker, that he was not .addicted to what might be termed the immoderate use of intoxicants, then it was their duty to return a verdict for the plaintiff. But this, as already stated, was not the meaning of the contract into which the parties had entered. Under the contract which the parties had made for themselves, it was agreed, that if Teets’ death was attributable to the use (moderate or immoderate) of intoxicating liquors, then the defendant should not be liable on its policy. The condition of Teets’ health or constitution might nave been such that his death would probably be brought about, or caused, by even the moderate use of intoxicating liquors. If so, then he was bound under his contract, with the defendant, to desist from even such moderate use.
For the error then above referred to, the- judgment must be reversed and cause remanded.
All concur.