The Muskegon National Bank recovered a judgment in the circuit court of the United States for theSouthern district of New York, against the Northwestern Mutual Life Insurance Company, upon a policy of insurance on the life of Erwin G. Comstock for $23,717.04, and to this judgment the present writ of Error is directed. The bank had an insurance upon the life of Comstock, its debtor, for the sum of $20,000. On the trial before the jury, although some other issues were made in the pleadings, the contest turned, so far as the assignments of error are presented here, on the condition of Comstock in regard to the habit of drinking alcoholic liquors. The policy, and the application for it, the answers to which were signed both by Comstock and the bank through its president, present the foundation of the controversy. The sixteenth interrogatory is as follows: 'Are you, or have you ever been, in the habit of using alcoholic beverages or other stimulants?' The answer to this was, 'Yes; occasionally.' The twenty-second interrogatory, 'Have you read and assented to the following agreement?' was answered, 'Yes.' This agreement, so far as it touches the present issue, reads as follows: 'It is hereby declared that the above are the applicant's own fair and true answers to the foregoing questions, and the applicant is not, and will not become, habitually intemperate or addicted to the use of opium.' The body of the policy declared that if Comstock shall become intemperate, so as to impair his health or induce delirium tremens, or if any statement in the application, on the faith of which the policy is made, shall be found to be in any material respect untrue, the policy is void.
Upon this language in the application and the policy the defendant founded two separate pleas or defenses: First. That 'at the time of making and presenting said application as aforesaid, and of the issuing of said policy, the said Erwin G. Comstock was, and prior thereto had been, habitually intemperate, and that the said statement in said application contained, that said Erwin G. Comstock was not then habitually intemperate, was untrue and fraudulently made, and a suppression of facts material to the risk assumed by said policy of insurance.' Second. That 'said policy was issued by this defendant, and accepted by said plaintiff, upon the express condition, among others contained therein, that if said Erwin G. Comstock should become either habitually intemperate, or so far intemperate as to impair health or induce delirium tremens, the said policy should be null and void; that in fact, as this defendanti § informed and believes, the said Erwin G. Comstock did, after the issuing of said policy, become habitually intemperate, and so far intemperate as to impair his health and induce delirium tremens; and that thereby the said policy became and is null and void.'
The issues were tried upon the two allegations of habitual intemperance before and after the issue of the policy. The company, discarding other issues, assumed the affirmative on these two pleas, and on a plea of suicide, which seems to have been abandoned, and thereby obtained the opening and the conclusion to the jury. The assignments of error raise objections to the action of the court in excluding answers to questions propounded to witnesses for the defendant company on the trial, as well as its refusal to give certain instructions prayed for by the defendant to the jury.