183 Iowa 211 | Iowa | 1918
I. Paul Boeck died November 28, 1909. At the time of his death, he was a member of the defendant society. The benefit certificate was payable, in the first instance, to the father and mother of the insured. Both of these having died before the insured, the plaintiffs herein,
II. The second defense was predicated upon Section 14 of the certificate of insurance, as follows:
“Prohibition against Intemperance. If any member of this society, heretofore or hereafter adopted, shall become intemperate in the use of intoxicating liquors, or in the use of drugs or narcotics, or if his death shall result directly or indirectly from his use of intoxicating liquors, drugs, or narcotics, then the certificate held by said member shall by such acts become and be absolutely null and void, and all payments made thereon shall be thereby forfeited.”
It is averred that the death of Boeck did result from • his use of intoxicating liquors, and much testimony was introduced in support of the averment. It is urged by the defendant that this evidence was conclusive, and entitled
The foregoing comprise the material and important facts upon which the former opinion was based. We find nothing in the additional, oral cross-examination of the defendant’s witnesses which was- had at the last trial which modified any of these facts to any degree. The plaintiffs introduced the testimony of some additional witnesses. One of these was the saloon keeper at whose saloon Boeck had spent the greater part of the last week of his life. The purport of his evidence is sufficiently indicated by the following quotations therefrom, which have been selected by
H never to my knowledge saw Mr. Boeck in my saloon ■when he appeared to be under the influence of liquor. or drinking excessively. I saw him in there at different times; I observed him drinking there. I saw him take some drinks. * * * Boeck was usually in the saloon in the evening. I have seen him there during the day, but not as often as later- on, and I couldn’t say that he was in there each day, because I hardly think he was. I became acquainted with him in a passing way. He would take beer, and sometimes whiskey. We didn’t permit persons to remain around in our place intoxicated. We made it a rule when we could detect or discover they were intoxicated not to have them in the place. * * * I couldn’t say whether he was in my saloon on Saturday night before he died. In the conduct of my business, I would not sell a man I thought was drinking too much.”
The witness McGready was the doctor who was called by the coroner at the inquest. He also made the affidavit pertaining to the cause of death which was attached to the proofs of death and sent to the defendant society by the plaintiffs herein. He testified, in substance, that his opinion was not formed upon an observation or examination of the .dead body, and that he could not have formed any opinion as to the cause of death upon such observation, ánd that he formed his opinion upon the facts adduced at the inquest. He also testified that he wanted to make a post-mortem examination, but the relatives would not permit it.
A medical witness, Burke, was called by plaintiffs. A lengthy hypothetical question, purporting to recite .the facts of the case, was propounded to him, and was answered by him. In the additional testmony thus introduced, we are unable to find anything that affects the important facts considered by us in our former opinion. The testimony of the
The medical' expert evidence was based purely on a hypothetical question. The question was vulnerable, but we pass that. The question wás so framed as to call for the opinion of the witness on the evidence in the case as a whole. It would be difficult to say that a medical expert would be any more competent to answer it than would any other intelligent witness or juror. Be that as it may, the answer of the witness added nothing to the case. At the close of the hypothetical statement, which is too lengthy to be set forth herein, the following questions and answers appear:
“Would you, from that history, Doctor, form an opinion as to whether or not, in your judgment, this man, thus found dead under the conditions and the history as I have given it,; — whether he died from the use of alcohol, either directly or indirectly ? Answer that by yes or no. A. No, T would not. Q. I say, could you form an opinion? A. Form an opinion as* to what was the cause of his death ? Q. Yes, have you an opinion? I am asking you whether you have an opinion, — not what it is, but — • A. Yes, I have. Q. * * * and I will now ask you, Doctor, whether or not the finding of the man dead, under those conditions,' — whether you would say that his death was due, directly or indirectly, to the use of alcohol? * * * A. No, T would not. Q. You say it didn’t, — is that Avliat you mean? A. Yes, sir, under the circumstances.”
Disregarding the ambiguity of the foregoing ansAvers,
“A. In order to cause a death from alcohol, you would have to have — they have to take a pretty excessive amount of alcohol. Deaths from alcohol, — that is, the immediate deaths from alcohol, — are rare, and they are not so rare, but then they are drawn over a considerable period of time, usually several hours. An alcoholic will go into a coma and stay in a coma for several hours. As far as immediate quick death from alcohol is concerned, there are not so- many of them, in proportion to the amount of alcohol that is consumed.”
It ivould be trifling with judicial candor to say that such evidence changed, in any material sense, the record as it appeared before us on the former appeal. We must, therefore, treat the former opinion as controlling, upon the present record. A verdict should have been directed for the defendant, upon the ground here indicated. The judgment is, accordingly, — Revised.