Sеction 8 of the general provisions of the policy in controversy reads as follows: “The insurance under this policy does not cover any loss, fаtal or otherwise, sustained: while intoxicated or under the influence of or affected by, or resulting directly or indirectly from intoxicants or narcotics; whilе violating the law; if such violation is the direct cause of the accident; any loss contributed to or caused by any mental or bodily infirmity.”
There was only onе issue submitted to the jury in the court below: “Was the deceased, E. C. Wilson, intoxicated or under the influence of or affected by intoxicants at the time of the fatal injury, as alleged in the answer?” The answer of the jury was “No.”
*590
There was no exception by defendant to the issue submitted, nor was any other issue tendered by it.
Grier v. Weldon,
The numerous exceptions and assignments of error made by defendant cannot be sustained. They are as follows: The court below charged the jury in different portions of the charge: (1) “The burden, therefore, of sustaining that issue is upon the defendant upon еvidence which shall satisfy you by its greater weight that its allegations and contentions are true and correct.” (2) “If the defendant has satisfied you from the evidеnce, and by its greater weight, that the deceased, R. C. Wilson, was intoxicated or under the influence of, or affected by intoxicants at the time of the fаtal injury, as alleged in the answer, it will be your duty to answer that issue 'Yes/ If the defendant has failed to satisfy you of that, or of those facts, those contentions, upon the evidence, or by its greater weight, then it will be your duty to answer the issue No/ ” (3) “Now, gentlemen, upon that testimony the plaintiff contends that you ought to be satisfied that Mr. Wilson at the time of the fatal injury was neither intoxicated nor under the influence of, nor affected by alcoholics or narcotics. She сontends that you, gentlemen, remembering that the burden of the issue is upon the defendant to satisfy you upon the evidence, and by its greater weight, if its contentiоns are true, they not only failed to sustain and carry the burden of the issue upon it, but that she has offered evidence, the greater weight of which, as she contends, while the burden is not resting upon her to satisfy you by its greater weight, but she contends that she has offered evidence which by its greater weight should satisfy you that her сontentions about it are correct, and that, therefore, you should answer that issue 'No/ ”
The defendant contended that in the first two above excеrpts from the charge it was the duty of the court below in the charge to the jury to have defined what constituted the greater weight of the evidence, and in failing to do so the court committed error. C. S., 564. We cannot so hold.
The burden of proof is on the party who substantially asserts the affirmative of the issue, whether he be nominally plaintiff or defendant. The burden of proof is on the party holding the affirmative. It constitutes a substantial right.
Hunt v. Eure,
*591 Tbe third portion of the charge, as set forth above, is a contention, and if not accurate the defendant should have called the matter to the attention of the court at the time. It is too late after verdict. Albritton v. Albritton, ante, 111 (115).
The court below charged the jury as follows: “For instance, the force of negative testimony must manifestly depend upon the opportunities of observation afforded to the witness. Those opportunities might be so favorable and frequent as to approach in weight to a positive statement; yet we takе it when the positive testimony would not conflict with the negative under any ordinary circumstances, the witness being equally creditable, the former should preponderate.”
The above, which is in italics in defendant’s brief, is taken
verbatim
from
Henderson v. Crouse,
The court below charged the jury as follows: “The court instructs you that, under the law, 'intoxicаted’ is synonymous, or practically so, with the word 'drunk’- — -that they mean practically, in ordinary usage, the same thing — an intoxicated person is a drunken persоn — a drunken man is an intoxicated man. And that means, intoxicated means, in law, that the subject must have drunk of alcoholics to such an extent as to appreciably affect and impair his mental or bodily faculties, or both. Now, the court instructs you further, that to be under the influence or affected by liquor means, that the subject must have drunk a sufficient quantity to influence or affect, however slightly, his body and his mind, his mental and physical faculties. Not that they must be appreсiably impaired, not that his emotions or passions must be stimulated or excited, or aroused, and the judgment impaired, but it-does mean that to be under the influence or affected by it, must to some extent, at least, affect him. He must to some extent, at least, feel it to be affected by it. If the defendant has satisfied you from the evidence, and by its greater weight, that the deceased, R. C. Wilson, was intoxicated or under the influence of, or affected by, intoxicants аt the time of the fatal injury, as alleged in the answer, it will be your duty to answer that issue 'Yes.’ If the defendant has failed to satisfy you of that, or of those facts, thosе contentions, upon the evidence or by its greater weight, then it will be your duty to answer the issue 'No.’ ”
The words “intoxicated” and “drunk” are commonly regarded as synonymous.
Bragg v. Commonwealth,
Under the terms of the policy the charge is favorable to defendant: “Must have drunk a sufficient quantity to influence or affect, however slightly, his body and his mind, his mental and physical fаculties.”
In Couch Cyc. of Ins. Law, Vol. 6, p. 4553, part sec. 1245, is the following: “And, broadly speaking, the words ‘intoxicated,’ ‘intoxicants,’ and ‘narcotics,’ as used in provisions in accident policies, excluding liability for injury or death while intoxicated or under the influence of intoxicants or narcotics, mean that the insured has usеd liquors or drugs to such an extent as to disturb the action of his mental or physical faculties, and that his sense of responsibility is substantially or materially impaired.”
Thеre are many exceptions and assignments of error as to the admission of evidence and the unnecessary examination of witnesses by the cоurt. We have examined each with care, and we cannot find any error, if error not prejudicial. In fact, some were cured by subsequent evidencе to the same effect, at least — the evidence had little, if any, probative value.
We think the evidence was a matter for the jury. They have decided in favor of plaintiff. On the record there is no prejudicial or reversible error.
No error.