The trial court charged the jury: "There is really but one question presented for your consideration upon the issues, and that is whether by the terms of the policy the insured during his lifetime became so intemperate as to impair his health," and, further, that the burden was on the defendant company of establishing the affirmative of the proposition. This view is about to receive the approval of this court, and as I am unable to unite in it my reasons for dissenting will be briefly given.
The policy of insurance contains the following provision: "Should the life insured be convicted of a felony, or become so intemperate as to impair his health or induce delirium tremens, said company shall have the unquestioned right, *Page 579 upon becoming satisfied of such fact, to terminate this contract immediately upon the tender to the party in interest of the legal reserve as hereinbefore described." The answer alleged, and the defendant proved, that it caused the habits of Charles Janneck to be investigated in October, 1893; that the report of the results of such investigation satisfied the defendant, on October 28, 1893, that the assured had become so intemperate as to impair his health, and on October 31, 1893, it caused to be tendered to the party in interest the amount of the legal reserve pursuant to the foregoing provision of the policy, and gave notice that it had terminated the policy. The assured died in August, 1894. It is not questioned, of course, that it was competent for the parties to the contract to agree that intemperance which should be so great as to impair the health of the insured should be treated as a sufficient cause for the termination of the policy, that the company should have the right to determine that question, and that its determination, if made in good faith, should be final. But while it is conceded that the parties were competent to make such a contract, and that one of them at least attempted to do so, it is said that they did not succeed. In other words, that while the language employed in the provision quoted tends in that direction, it is not by it so clearly and emphatically expressed as to call upon the court to give such a construction to it, and the necessary result is that the provision becomes meaningless and serves no purpose whatever. It seems to me quite clear that the parties agreed that should the life of the insured become so intemperate as to impair his health the company should have the right — yes, "the unquestioned right," provided it first became "satisfied of such fact" — to do what? "To terminate this contract." When? "Immediately." On what condition? "Upon the tender of the legal reserve." It seems to me that a reasonable construction of this language requires us to hold that the parties did provide a method by which the defendant company could terminate the contract in the contingency provided for, which could only be brought into existence by the conduct of the *Page 580 insured. The defendant having offered evidence tending to show that such a contingency arose and that after an investigation it became satisfied that the fact was that the insured had become so intemperate as to impair his health, and having thereupon canceled the policy and tendered back the amount of the legal reserve, under the evidence in this case there was but one question for the jury, and that was whether the defendant in what it did acted in good faith. The learned counsel for the defendant asked the court so to rule and to submit that question as the only question to the jury, but his request was refused, and the exception taken would lead to a new trial if the contract should receive the construction I have suggested.
BARTLETT, MARTIN, VANN and CULLEN, JJ., concur with WERNER, J., for affirmance; GRAY, J., concurs with PARKER, Ch. J.
Judgment affirmed.