Equitable Life Assurance Society v. Paterson

INSURANCE—APPLICATION—GOOD FAITH—MISREPRESENTATIONS.—The utmost good faith is required in an application for a life insurance, and any misrepresentation of facts affecting the nature or extent of the risk ¡voids the policy. SAME—MISREPRESENTATION — KNOWLEDGE OF FALSITY NECESSARY TO AVOID POLICY.—When one, as the agent of his reputed wife, represented to an insurance company that she was his wife, and affected an insurance upon his own life in her name, as her agent, for her benefit, and the truth of the case was, that the marriage was void by. reason of the reputed wife having a former lawful husband living at the time of the second marriage: Held, that the policy is not void by reason of the illegality of the last marriage, unless it further appears that the said deputed husband and wife knew, at the time .the policy was effected, that at the time of their supposed marriage the lawful husband of the wife was living, and the marriage illegal, and failed to inform the company of the fact. SAME—SUICIDE AS AVOIDING POLICY—INTENT TO DESTROY LIFE MUST EXIST.*—When in a life insurance policy there was an exception, that the company was not to be liable if within two years the assured should die by his own hand: Held, that if the assured drank to intoxication, and while in this condition, by accident or mistake, took an overdose of laudanum and died therefrom, this is not a dying by his own hand in the sense of those words as used in the policy, even though the mistake or accident be in some sense occasioned by the drunkenness; but if-he took the laudanum with intent to destroy his life, though it be but the intent of a drunken man, 'this is a dying by his own hand.

Insurance. Marriage. Charge of Court, etc. Before Judge Schley. Chatham Superior Court. April, 1870. In August, 1868, Catharine A. Paterson averred that, on the 26th of February, 1867, she caused to be made a policy of insurance by the Equitable Eife Assurance Society of the United States, a corporation, by which, in consideration of the representations made. to said society, in the application for such policy and statements therein made, touching the person and family of the assured, submitted by the assured, and of $136 30 paid by her to said society, and of the like sum to be paid semi-annually, on or before the 26th of August and February, in each year, during the life of the assured, the society assured the life of her husband, James F. Paterson, *for $10,000 00, for her sole use, with participation in profits during his life. This sum was by the policy to be paid to her within sixty days after her husband's death, upon due notice and proof. Among the stipulations in said policy were, that it should be void “if the assured shall die by his own hand, within two years from the date of said policy,” “or if the declarations made in the application for said policy, or if any statement respecting the person or family” of the assured, “should be found in any respect untrue.” On the 16th of May, 1868, the assured died, of which notice and proof were made on the 1st of June, 1868, as required by the policy. All that was necessary to be done and to be avoided, to make the case against the company was averred. Another count did not aver that Paterson was her husband. Another, made the same omission, and also omitted the averment as to representations made to the society, before the policy was issued. She concluded with counts for money had and received, money laid out and expended, etc. In each she claimed $10,000 00 besides interest. The society pleaded the general issue; that in said application Paterson was represented as a married man, whereas he was not; that plaintiff was not Paterson’s wife, as was therein stated, but was 'the wife of one John H.. Talbird, but had undertaken to marry Paterson, and was living with him under such circumstances as that, had they been fully disclosed, the policy would not have been issued, yet she 'and Paterson fraudulently concealed these circumstances from the society; that on the 11th of December, 1863, she and Paterson had procured the passage of a private Act, relieving them from the penalties of marrying while said Talbird was alive, representing that they then supposed him to be dead, and yet this was also fraudulently concealed from said society; that she had no interest in Paterson’s life; had it been known the policy had not been issued. Further, she was faithless to Paterson, drove him to desperation, because of her discovered infidelity, and he had determined to separate from her, consulted counsel, and was in the act of such separation just before his said death. Further, Paterson took poison *from some person, unknown, his death was by poison, which she knew he had taken voluntarily, and yet, being present and intending to let it have full effect, she refused and neglected to call medical aid, whereby his death occurred. More, she assisted him in taking said poison, she administered it to him; and for these reasons this society said that the policy was void. On the trial, plaintiff read in evidence the said policy, which was drawn in favor of “Katie A. Paterson, wife of” said Paterson; the certificate of a minister showing her marriage with Paterson, in 1860; showed by a witness that Paterson introduced her to him as his wife, that Paterson died on the day alleged, and that notice and proof were made, as required by the policy, that payment of the $10,000 00 was demanded and refused, and closed. The defendant’s agent, who had issued the policy, testified that this policy was based upon the application shown to him, and that had it been known that plaintiff and Paterson did not sustain to each other, at the time, the legal relationship of man and wife, the policy would not have been issued. Cross-Examined he said: “I first heard doubts expressed as to whether Dr. P. and plaintiff were husband and wife, after the death of the former. If I had known that such doubts existed at the time of the issuing of the policy, I might, 6r might not, have recommended it to issue. The company, in my opinion, would not have issued it. I do not know the laws of the State of Georgia as to what constitutes the legal relation of husband and wife. The company so far recognize my acts as generally to issue the policy on my recommendation; but they would correct any errors. As a general thing, they acknowledge as binding what I do. I canvassed Dr. Paterson heavily to induce him to take out the policy.” The application was then put in evidence, containing the following .stipulation: . “The undersigned, whose life is herein proposed for Assurance, hereby declares that the answers to the questions herein are fair, full and true answers to said questions, and it is distinctly stipulated and agreed by said applicant, that the said answers and the statements herein shall form the basis *of the proposed contract of assurance, and that any untrue or fraudulent answers or statements, any suppression of facts respecting Jhis (or her) health or family history, or neglect to pay the premium on or before the day it becomes due, .shall render all policies issued under or by reason of this application, and all dividends thereon, null and void, and forfeit all payments made thereon, and that said proposed assurance shall not be binding until the first premium shall have been received by said society, or an authorized agent thereof, during the lifetime and good assurable condition of said applicant.” It contained also the following questions and answers by James T. Paterson: “5. Are you married? Yes. Plave your habits of life always been correct and temperate? Yes.” “10. What is your custom respecting the use of ardent spirits, malt liquors or wine? Use them very rarely.” “20. What is the relationship, or interest in you, of person named ? Wife.” “18. In whose favor is the policy to be drawn? (Name in full.) Katie A. Paterson.” And the following question and answer in the medical examiner’s report: “11. Do you believe the person to be entirely sober and temperate in his habits of life? They are.” And the following in certificate of friend: “2. Are his habits of life entirely correct and temperate? Yes.” “Are his habits and health such, in your opinion, as to render his life safely assurable? Yes.” The application- was signed at Savannah, “this 21st day of February, 1867, by James T. Paterson, for Katie A. Paterson. Witnesses by L. Bowie. Approved and recommended by U. Bowie, Agent.” To show that John H. Talbird was alive when plaintiff *married Paterson, in 1860, and that she knew it at the time of her marriage, the defendant introduced the following evidence: A record by which it appeared that in 1869, she filed in New York a libel for divorce against him, swore to the facts stated, had him served personally, in Alabama, and obtained a divorce from him. An Act of the General Assembly of Georgia, passed in 1863, relieving her and Paterson from the pains and penalties of living together upon the ground that they married supposing Talbird was dead, but had since doubts as to that fact. In 1863 and 1864, Paterson, at her instance, made two wills, giving her property, (as a witness said) that it might not be inherited by Paterson’s brother. One witness testified that Talbird was alive and in Augusta trying to get his child from plaintiff, while she and Paterson were there living together. Another saw Talbird in 1865, and another in 1862 or 1863. Talbird testified that they parted in 1859, in Alabama, he had left there for about two years and returned in 1864, and had lived there ever since; she wrote to him in 1863, and he did go to Augusta for the child, but did not see or communicate with plaintiff. She came to Augusta on their separation, taking the child with her. It was shown that during this absence of Talbird, he was reported dead ;■ but the witnesses stated facts going to show that the report was fabricated and given currency to by plaintiff and Paterson. It was shown that Paterson died from the effects of laudanum taken about twelve o’clock at night, that no physician was called in till about eleven o’clock of the next morning, and that he died about noon. The circumstances as detailed by her, her conduct at the death, at the burial, and afterwards, Paterson’s declaration that she was unfaithful to him and that he had quited her, on the day before the death, and that he reurned only to get something which he had left, etc., etc., were put in evidence, to show that she either gave him the laudanum or suffered him to take too much, and carelessly or wickedly prevented medical assistance, till his death from laudanum was inevitable. And it was shown that she *was indicted for murdering Paterson; and circumstances to prove that she was faithless to him with one Roher, and others, were shown. There was evidence to show that he was a temperate man. In rebuttal, other witnesses testified as to the manner of plaintiff and circumstances to relieve her from the suspicion of carelessness, wickedness or unchastity as to Paterson. She testified to facts tending to how her perfect innocence, that the death was by over dose of laudanum, by accident taken, when Paterson was drinking, weak, and nervous, and sleepless, etc. She produced and read many letters from Paterson, in which he addressed her very tenderly as his wife. And she stated that she did believe Talbird was dead when she married Paterson, and that her belief was founded upon circumstances detailed by her, and not of her making, etc. It was shown, that she was ready to be tried for murder, but the State not being ready nor willing to go to trial, upon the terms placed upon them by the Court, the bill was nol pressed. Roher explained his connection with the parties, etc., etc., and said Paterson was drunk that night. Upon the close of the testimony, which was very lengthy, and pro and con, on all the questions made, the defendant’s counsel requested the Court to charge the jury as follows: “1. That the policy of assurance, placed in evidence by the' plaintiff, is1 void, from the want of such an insurable interest as is required by the law of Georgia, and there can be no recovery upon it. 2. That if, in taking out and continuing the policy of assurance, James T. Paterson transacted the business for the plaintiff, she is bound by his acts and declarations in connection therewith, as her agent. 3. That they (the jury) cannot bring in a verdict for the plaintiff, unless they find that her interest in the life of Dr. Paterson was such as he represented it to be, and (interest and relationship are to be regarded as convertible terms,) that any concealments or misrepresentations as to the true character of that relationship, which in any wise effected the risk of the insurer, violated the policy, and there can be no recovery upon it. *4. That the language of the policy incorporated into itself the application upon which it was based, making all the statements of the latter covenants of warranty upon the part of the plaintiff that they should be in all respects strictly true; and that if the evidence shall have shown any misstatement whatsoever, or any suppression of a qualifying fact, in the application, whether resulting from design or from ignorance, whether affecting the risk or not, the policy was made void thereby, and they (the jury) must bring in a verdict for the defendant. 5. That when, in answering the question: “What is the relationship, or interest in you of person named?” Dr. Paterson replied, “wife,” it must be understood he meant “wife” in the full sense of the term as used by the law, without any qualification whatsoever; and that no other relationship, howsoever near or dear, can be substituted for it. If the evidence shall show that the plaintiff was not the lawful wife of deceased, the jury must bring in a 'verdict 'for the defendant. 6. That no woman can be the lawful wife of two living husbands; and that if a married woman, while her husband still lives, shall undertake to contract marriage with another man, such contract is void; and it is wholly immaterial whether she undertake to make it from fraud or ignorance. 7. That, if they (the jury) shall find that Dr. Patersoji came to his death from the effects of poison administered by his own hand, whether with a rational or maudlin intent to destroy his own life, or from the effect of intoxication, displacing the capacity to intend, he committed suicide, and, under the laws of Georgia, the plaintiff cannot recover upon this policy. 8. That, if they shall find that Dr. Paterson came to his death by his own hand, in the administration of poison, or through any agency whatever, within two years from the date of the policy, the plaintiff cannot recover upon it. < 9. That, if it shall appear from the evidence that the poison was administered by the plaintiff, or by any one in her presence, with her knowledge, whether such person was Dr. * Paterson or not, she cannot recover in this action; and that, in order to reach this conclusion, it is not necessary to find her guilty of an indictable offence, or guilty of murder beyond a reasonable doubt; but that this being a civil cause, their verdict must follow the preponderance of the evidence. 10. Thatj if they shall find that Dr. Paterson took the poison by mistake, the mistake originating in a mind enfeebled or beclouded by drink, and leading him to pour out laudanum by a dim gas-light, and into a goblet, in such quantity as produced death, he was guilty of gross negligence, and the plaintiff cannot recover. 11. That, if they shall find that the plaintiff was present when Dr. Paterson, in such condition, and under such circumstances, swallowed the poison, and shall find further that, when the results of the poison grew to .be apparent, she failed to call in such medical aid as might have saved his life, she was guilty of gross negligence, and they must bring in a verdict for the defendant. 12. That a stricter good faith as to representations and concealments should be required in mutual insurances than in any other similar contracts. Code, 2798. “Every application for insurance must be made in the utmost good faith, and the representations contained in such application are considered as covenanted to be true by the applicant. Any variation by which the nature or extent or character of the risk is changed will void the policy.” Code, 2760. And that this law refers to all contracts of insurance. even where the application is not made a part of the policy itself. 13. That, if the jury shall be satisfied from the evidence that there was a conspiracy between the plaintiff and Edward A. Roher, or any other person or persons, to secure the payment of the insurance money, whether by destroying the life of James T. Paterson, or by concealing the real causes or significant circumstances of that death, or by any act or declaration looking to any circumstances or relationship in life of the plaintiff, whether existing before or after the undertaking by her to contract marriage with Paterson, then all the acts and declarations of Edward A. Roher, and of such *other person or persons looking to that end, are to be regarded as the acts and declarations of the plaintiff herself. That if the jurv be satisfied that the plaintiff has been guilty of gross negligence, either by herself or by her agents, she cannot recover upon this policy, even though they (the jury) should recognize no evidence of criminality either in her or her agents. Code, 2759. 14. That the application, being part of the policy, constitutes the contract between the insurer and the assured, so far as its contents are concerned, and that, even if the agent of the defendant in Savannah knew the peculiar relationship existing'between the plaintiff and James T. Paterson, yet, if the evidence shall, show that it was not the full and legal relationship existing between husband and wife, the policy is void, and the jury must bring in a verdict for the defendant. 15. That, if a married man die in Georgia, leaving no children, his wife is his sole heir, and takes all of his property. 16. That, if James T. Paterson had come to his death by the hand of John H. Talbird, because of the relationship between Paterson and Talbird’s wife, plaintiff could not have recovered. The Court charged the jury as follows: “This is an action brought by Catherine A. Paterson against the Equitable Life Insurance Company,-of New York, for the recovery on a life policy for the sum of $10,000 00 taken on the life of her husband, James T. Paterson, for her benefit. It is conceded by both counsel that such a contract, under the laws of Georgia, can he made, and that a husband can take out a policy for the benefit of his wife. Then we must see if, from the pleadings, such a contract was made between the assurer and James T. Paterson. If so, then to make the Company responsible, you must find that the assured has complied with whatever conditions were imposed by the contract, such as paying the premiums, and, after the death of the party upon whose life the policy was taken, according to the regulations of the Company, the furnishing of the proper notice, and due proof thereof ; or, in other words, whatever *was imposed on the plaintiff by the contract, as executory, or a condition precedent to the contract, you must find to have been performed by the plaintiff, before the Company can be liable. The conditions upon which this policy was obtained have been stated in your hearing; it is not necessary for me to repeat them. There is prima facie evidence that these conditions have been complied with, because the contract is made, the policy is in Court, and the action is brought upon it. I will premise by stating that all the statements of the assured at the time of making the contract, in his application for insurance, are presumed to be true until the contrary is made to appear. That is to say, it is not necessary to a recovery by the plaintiff that she should show that all or any of the statements made by the assured in answer to the questions propounded to him at the time of making the contract, were true; for, being accepted by the Company, the presumption is they are true, till the contrary is shown. But the defendant, when the action is brought, comes in, and, in its plea, denies that certain of those statements are true, and says that, therefore, the policy is void. This brings us to the consideration of the legal points raised by the defendant. But before proceeding to consider them, I charge you, as requested by the defendant’s counsel, that the plaintiff is bound by the acts and statements of James T. .Paterson, just as much as if they had been made by herself, he being her agent in securing this insurance. The first point made by the defendant is that the assurer made a false representation to the defendant, in stating that the plaintiff was his wife. Upon this point, therefore, I charge you, as requested by the defendant, that you must find that, in fact and law, the plaintiff was the wife of the defendant; and if you fail to find this fact, the plaintiff cannot recover, because it was the right of the Company to know the true relationship existing between the plaintiff and the assured. For had she been nothing more than a concubine, in fact, and the assured represented her as his wife, in law, it would have been such a false representation as would *avoid the policy. Now, here the question arises, were Paterson and his wife legally married? This is one of the main points in this case. It is conceded that it is a Georgia contract. Then, what is the law of Georgia on the effect of this second marriage by the plaintiff? On this point I charge you that, whatever may have been the criminal consequences to the plaintiff, for contracting this second marriage, yet, for many purposes, the marriage was valid until annulled. For instance, suppose the plaintiff had purchased necessaries without the consent of Paterson, and he had refused to pay for them, and he had been sued,.he could not have set up successfully the plea that the plaintiff was not his wife. Again, had there been children bom to them, such issue would not have' been illegitimate. Now, while it is true that the law forbids a second marriage by a person who has a husband or wife living, yet there are even exceptions to this rule, as in the case of absence for seven years, and no tidings received of such absentee—■ such a marriage would be valid until annulled by a decree of a competent Court. For all civil purposes, a marriage between persons within the prohibited degrees of consanguinity is good until the parties are divorced, and as the Code gives this disability, that is, such blood relations, as one of the three disabilities in reference to the marriage contract, it must follow that the marriage of one already married is valid until a judgment of divorce is granted. Therefore, if you find, under the testimony, that Paterson and the plaintiff were united in marriage according to the requirements of the law in Georgia, and that they lived together as man and wife for a number of years, I charge you, that the representations made by Paterson to the defendant, that the plaintiff was his wife, was not such a false representation as avoids the policy and contract between Paterson and the defendant. The next point raised by the defendant, and a very important one also, is, that the policy is void because the deceased came to his death by his own hand, or by the act of the plaintiff. I charge you, that if either fact be found true from the testimony, the plaintiff cannot recover. I further ^charge you, that if he died.by his own hands, it is hot necessary for you to find a felonious self-destruction. It will be sufficient if you find that the act was committed voluntarily, when Paterson had sufficient powers of mind to either do the actor to abstain from doing it. If you find from the evidence that Paterson, impelled by any cause, whether domestic unhappiness, or financial trouble, or both, voluntarily, and with sufficient reason to know the consequences of the act, took a quantity of laudanum sufficient to destroy life, that would be such a self-destruction as would avoid the policy. I have had some ten or twelve requests made by the defendant’s counsel. I think I have charged, substantially, up to the seventh. In the seventh, I am requested to charge the jury that, if you find that Dr. Paterson came to his death from the effects of poison administered by his own hand, whether with a rational or maudlin intent to 'destroy his own life, or from the effect of intoxication displacing the capacity to intend, he committed suicide, and 'under the law of Georgia the plaintiff cannot recover upon this policy. So I charge you. Eighth. .The charge, as requested, I will read, and then charge with a modification, “That if they shall find that Dr. Paterson came to his death by his own hand, in the administration of poison, or through any agency whatever, within two years from the date of the policy, the plaintiff cannot recover upon it.” I charge that, if you find that Dr. Paterson came to his death by his own hand (in the intentional administration of poison) or through any agency whatever, used by himself with such intention, within two years from the date of the policy, the plaintiff cannot recover. The policy expresses that if he committed suicide within two years of its date there could be no recovery. That is part of the contract. Ninth. “That if it shall appear from the evidence that the poison was administered by the plaintiff, or by. any one in her presence, (with her knowledge) whether such person was Dr. Paterson or not, she cannot recover in this action; and *that, in order to reach this conclusion, it is not necessary to find her guilty of an indictable offence, or guilty of murder beyond a reasonable doubt; but that this being a civil cause, their verdict must follow the preponderance of the- evidence.” I cannot charge you in the language requested, but charge you in the following language: If a dose of poison was administered by the plaintiff, Catherine A. Paterson, or by Dr. Paterson himself, or any one else, with a knowledge on his part that it was taken, not simply as a medicine, but as a poison, then she cannot recover. I charge you further, it is not necessary for you to find such facts as would make the plaintiff technically guilty of murder; that is, such as would be necessary for you to find if she was on trial for the crime of murder. For instance, if you should find from the testimony that the plaintiff had every reason to believe that a dose of laudanum or other poison, administered by a third person, or taken by Dr. Paterson himself, would probably result in death; and you further find that, under such belief, she took no steps to seek relief for the deceased, while she would not be technically guilty of murder, (there being no union of act and intention on her part to kill the deceased,) yet I charge you, under such circumstances, she would not be entitled to recover; and in arriving at such a conclusion, you will adopt the usual rule in civil cases in finding in favor of the preponderance of evidence. Tenth. I am requested by the defendants to charge you, “That if they shall find that Dr. Paterson took the poison by mistake, the mistake originating in a mind enfeebled or beclouded by drink, and leading him to pour out laudanum by a dim gas light, and into a goblet, in such quantity as to produce death, he was guilty of gross negligence, and the plaintiff cannot recover.” I decline to charge you, as requested, in that lanugage. But I charge you, that if Dr. Paterson, by voluntary drunkenness and incapacity of mind produced thereby, took a dose of laudanum to destroy life, the same as if committed when sober; for, as drunkenness is no excuse for crime, if he administered to himself, or *any other person, a dose of poison sufficient to produce death, the law would presume that the act was intentional; and, under the law, such an act as that to another person would be considered murder, and, committed upon himself, would be considered suicide. Eleventh. “That if they shall find that the plaintiff was present when Dr. Paterson, in such condition,‘and under such circumstances, swallowed the poison, and shall find further, that when the results of the poison grew to be apparent, she failed to call in such medical aid as might have saved his life, she was guilty of gross negligence, and they must bring in a verdict for the defendant.” I cannot charge you, as requested, in that language ; but I charge as follows: If you shall find that the plaintiff was present when Dr. Paterson took a dose of poison, and shall further find that, when the results of the poison grew to be apparent, and she had reasonable ground to believe that such results would prove fatal, and she failed to call in, in time, such medical aid as might have saved his life, she cannot recover. Then, in regard to the conspiracy, I charge, if you find from the testimony that Roher and Mrs. Paterson conspired to take the life of the deceased, then any act or saying of either party tending towards the accomplishment of the act they conspired to perpetrate, whether such act or saying «was done or said when they were together or separate, is in law the act of both parties. Mr. Jackson, of counsel for the defendant: If your Honor will excuse me, the first request—if your Honor will turn to that and read it—I would like your Honor to overrule. The Court: “That the policy of assurance placed in evidence by the plaintiff is void from the want of such an insurable interest as is required by the law of Georgia, and there can be no recovery upon it” I have substantially charged that, by saying that (under my construction of the law) if they believe that Paterson and his wife were married under the forms prescribed by the laws of Georgia, then she was his wife. And if they find she is his wife, then this is such an insurable interest as would not void the policy. *Mr. Jackson: I perceive I am so unfortunate as not to have made myself understood. We deny that a wife can take out a policy in her own name upon her husband’s life in Georgia. The Court: That is not the case at bar. Mr. Jackson: Undoubtedly; the policy is taken out by Katie A. Paterson upon the life of her husband. It is not taken out by James T. Paterson upon his own life, for the benefit of his wife,, as set out in the Code of Georgia; but a policy taken out by her, he acting as her agent, precisely as any other person might act as her agent in the matter. He acted as her agent, being, also, her husband. The Court: I charge the jury that the policy can be taken out; and if they find she is the wife of Paterson, under the testimony, a recovery can be had so far as to his representing her as his wife. Mr. Saussy, of counsel for plaintiff: There is one point that we ask your Honor to charge, that if the jury find a verdict for the plaintiff, the plaintiff is entitled to interest upon $10,000 00, from and after the expiration of sixty days from the date upon which the company received proof of loss and notice of death, which'was on the 12th day of June, 18.68. The Court: So I charge you, gentlemen. The jury having retired, subsequently returned for further instructions. The Court said: Gentlemen, I am informed you desire me to recharge you on the question óf drunkenness and suicide. I charged you, before you went out, on that question, that if Paterson, by voluntary drunkenness and incapacity of mind produced thereby, took a dose of laudanum to destroy his life, then, under the law of this State, the effect of his act would be the same as if committed when sober; so far as drunkenness is no excuse for crime; that is, drunkenness would not excuse him if he administered to himself or any other person a dose of poison sufficient to produce death; the law would presume the act was intentional; and under the law such an act committed on another person would be considered *murder: committed upon himself, it would be considered suicide. Mr. Hartridge (of counsel for plaintiff): I understand your honor to charge the jury that the taking of the liquor to produce drunkenness must he intentional upon the part of Dr. Paterson, or, in other words, that he intentionally became drunk for the purpose of committing suicide. The Court: Yes, that is what I mean by voluntary drunkenness ; that he took it for the purpose of making himself drunk. A Juror: That is the case in point. Mr. Jackson, of counsel for defendant: My construction of the charge is that, if he became voluntarily drunk, and then, as the result of that drunkenness, gave an overdose of laudanum to himself, or to any one else, he was guilty either of murder or of suicide. The Court: Yes; if he voluntarily took this laudanum for that purpose. A Juror: That is all that we disagree upon—all that we ask information upon. The jury again retired and, after a short time, returned with a verdict for plaintiff for $10,000 00 with interest. Whereupon the defendant moved for a new trial, on the following grounds. T. Because the Court erred in charging" the jury that "the marriage of one already married is valid until a judgment of divorce is granted.” 2. In charging the jury that “whatever may have been the criminal consequences to the plaintiff for contracting this second marriage,” yet that “if they should find, under the testimony, that Paterson and herself were united in marriage and lived together as man and wife, there was no misrepresentation on the part of Paterson which would avoid the policy.” 3. In failing to charge the jury as requested by defendant’s counsel in writing, that “any concealments or misrepresentations as to the true character of the relationship” existing between Paterson and the plaintiff “which, in any *wise affected the risk of the insurer, voided the policy, and there could be no recovery upon it.” “That the language of the policy incorporated into itself the application upon which it was based, making all the statements of the latter covenants of warranty upon the part of the plaintiff that they should be in all respects perfectly true; and that, if the evidence shall have shown any misstatement whatsoever, or any suppression of a qualifying fact in the application, whether affecting the risk or not, the policy wp.s made void thereby, and they (the jury) must bring in a verdict for the defendant.” 4. In refusing to charge the jury as requested by defendant’s counsel, “that, if they should find that Dr. Paterson took the poison by mistake, the mistake originating in a mind enfeebled or beclouded by drink, and leading him to pour out laudanum by a dim gas-light into a goblet, in such quantity as to produce death, he was guilty of gross negligence, and the plaintiff cannot recove/.” 5. In not charging as requested by defendant’s counsel in writing, that, “if the jury should be satisfied, from the evidence that there was a conspiracy between the plaintiff and Edward A. Roher, or any other person or persons, to secure the payment of the insurance money, whether by destroying the life of Paterson, or by concealing the real causes, or significant circumstances of that death, or by any act or declaration looking to any circumstances or relationship in life of the plaintiff, whether existing before or after the undertaking by her to contract marriage with Paterson, then all the acts and declarations of such other person or persons looking to that end, are to be regarded as the acts and declarations of the plaintiff herself.” . That his Honor erred in limiting his charge upon that point, to conspiracy between Roher and Mrs. Paterson to take the life of deceased. 6. In not charging the jury as requested by defendant’s counsel in writing, “that if the jury be satisfied that the plaintiff has been guilty of gross negligence, either by herself or by her agents, she cannot recover upon this policy, even though they (the jury) should recognize no evidence of criminality in her or her agents.” *7. In charging the jury that the plaintiff, Kate A. Paterson, could take out a policy in her own name upon the life of James T. Paterson; in other words, that a wife can take out a policy in her own name, without other insurable interest, upon the life of her husband, under the Code of Georgia. 8. In recharging the jury, (upon the matter of drunkenness on-the part of Paterson) at their request, and in responding to counsel in their presence, erred in conveying to the jury the instruction which was conveyed by the dialogue, aforesaid, between the Court, counsel and jurors. 9. Because the verdict is contrary to law. 10. Because it is against the evidence. The Court refused a new trial, and that is brought up for review, upon the grounds stated in the motion.