A review of the voluminous testimony touching the subject could serve no purpose; suffice it to say that as to 4a the question was not whether McEwen had used liquor at all, but assumed as a fact that he did use them. The inquiry is directed solely to the extent of his daily consumption of such beverages. Hence, conceding that, as shown by the evidence, he did at times, varying in intervals of two to four weeks, drink both beer and whisky, such fact is not inconsistent with his answer, "No daily habit-occasional beer." The response made cannot, as urged by appellant, be construed as a representation that he never drank whisky at all; but as we interpret the question and answer, it was simply a statement to the effect that he was not addicted to its daily use.

[6] The reply to question 4b is that he never at any time had used such liquors to excess. No court, so far as we are advised, has undertaken to define what constitutes the excessive use of alcoholic spirits. The cases of Malicki v. Chicago Guaranty Fund Life Society, 119 Mich. 151, [77 N. W. 690], and Brignac v. Pacific Mut. Life Ins. Co., 112 La. 574, [66 L. R. A. 331, 36 South. 595], involved different questions and cannot be deemed authority in support of appellant's contention. The meaning of the word "excess," as here used, is largely a matter of opinion, depending upon the capacity of the individual and liberality of view entertained upon the subject by the individual, whose opinion might again be governed by the time, place, and occasion. (Clinton v. State, 64 Tex. Cr. 446, [142 S. W. 591]; Biermann v. Guaranty Mut. Life Ins. Co., 142 Iowa, 341, [120 N. W. 963].) In the absence of any standard of measurement, the question is one of fact to be determined by the jurors, whose conclusion, as stated, would depend largely upon their views as to what constitutes excess in the use thereof. It cannot be determined upon the quantity used, because of the fact that an amount which might affect one individual would not be noticeable upon another. The most of the testimony bearing upon the question was given by witnesses from Daggett, near which place it appears deceased was engaged in the operation of a mine and from which he, from two to four weeks, went to Daggett, at which times he concededly drank more or less whisky and beer. There is little testimony touching the quantity of

his libations. Apparently he did not drink sufficiently to interfere with his transaction of business, and it fairly appears that there was a conflict of evidence as to the effect upon him of that which he did drink. Under the circumstances shown, we cannot say that the jury, upon the testimony as to his habits of drinking at Daggett, were not justified in their verdict that he did not drink to excess. It appears from the testimony of two witnesses, James Hosick, a police officer of the city of Los Angeles, and a Mrs. Skinner, that McEwen did drink to an extent that resulted in his being drunk, and both of them go into details as to one particular occasion. As to the testimony of these two witnesses, the court instructed the jury that if they believed the same, they should find that the applicant's answer to the question was false, but instructed them that the one particular instance referred to would not necessarily justify a verdict that the answer was false; that as to that, if they found their evidence true, they should consider whether or not it was a voluntary intoxication or an incident where others who were with him succeeded in getting him intoxicated for purposes of their own, in which case they should not consider such act alone as justifying a finding that his answer was false, but that "if you find from the evidence . . . that the deceased was in the habit of using wine, spirits, or malt liquors, and that had persisted for some time, and that he had on more than one occasion used them to excess, then you should find that the representations herein are false." This last instruction was certainly as fair as defendant could ask, and it is apparent from the verdict that the jury did not believe the testimony of Hosick and Skinner as to repeated acts of drunkenness on the part of McEwen to which they testified. We cannot say the conclusion of the jury that the answers of McEwen to questions 4a and 4b are not justified by the evidence.

5. In answer to questions 1 and 2 McEwen stated that he was proprietor of a collection agency, in which business he had been engaged for ten years. These questions called for full details, and considering the sufficiency of the evidence to justify the verdict, we must bear in mind that McEwen certified that "I declare, on behalf of myself and of any person who shall have or claim any interest in any insur

ance made hereunder, that I have carefully read each and all of the above answers, that they are each written as made by me, that each of them is full, complete, and true, . At the date of making the application for the insurance, McEwen's chief business appears to have been that of mining. According to plaintiff's testimony, he went to New Mexico in 1904 and was there about a year, and in 1906 he went to Old Mexico, where he was engaged in the brick business and a part of the time in mining. When he returned from Old Mexico in 1906, he engaged in mining near Daggett, and a part of the time prospecting near FallHe continued in the mining business near Daggett until July, 1909. The evidence shows that he never had an office and was not connected with a collection agency; and while there is some evidence that he made collections for his father, a groceryman, and at times for others in a desultory way, it could in no sense be said that he was or had been for ten years engaged in such occupation. Indeed, it clearly appears from the evidence that he not only was not the proprietor of a collection agency in any sense of the term, but that during the ten years preceding the making of the application, and particularly from 1904 to July, 1909, he was engaged largely in mining and business other than that of collecting. [7] In arriving at its verdict upon the answer given to this question, the court instructed the jury that it was to determine whether or not the statement made was substantially true. "By substantially true does not mean somewhat true, partially true, on the one hand, nor does it mean true in every possible and immaterial respect on the other. It means true without qualification in all respects material to the risk." Considering the character of this evidence, we think it apparent that the jury under the instruction, believing it was its province to determine whether or not the representation was true "in all respects material to the risk," determined that it was immaterial, and, therefore, notwithstanding the falsity of the answer shown by the evidence, rendered their verdict upon such theory. The court did not as to this question, as it did in others, determine the question of the materiality of the answer, but by this instruction clearly submitted to the jury the question of its materiality. The giving of the instruction as to this question was erroneous,

since, as stated on the former appeal, "the materiality of the representations was a question of law for determination of the court and not the jury."

[8 6. In response to question 7, "What illnesses, diseases, or accidents have you had since childhood?" McEwen answered: "Typhoid pneumonia; one attack in 1891; duration two months; severe; complete recovery." It conclusively and without contradiction appears from the evidence that in July, 1909, just a year prior to making the application for the policy, McEwen, at his mine near Daggett, was injured by being struck or kicked in the chest by the foot of a mule, as a result of which his back was strained and one rib broken; that owing to total disability caused by the injury, he received from an accident insurance company the sum of $25 per week for a period of sixteen weeks, amounting in all to four hundred dollars. The character of the injury was such that it completely rendered him unfit for doing any business whatsoever; that he raised purulent matter and stated to Dr. Garrett that he spat blood, the cause of which, as stated by McEwen and determined by the doctor, was the injury received in this accident, the effect of which was for a time to seriously impair his health. The question not only called for a statement of diseases from which he had suffered since childhood, but as well accidents to which he had been subjected and from which he had suffered. The answer was in effect that he had had no accidents. Notwithstanding the serious nature of the injury suffered from this accident, which disabled him for a period of nearly four months, he concealed from the company all knowledge thereof, the effect of his answer being that he had suffered no such injury from the accident as that shown. That the information was material and suppressed in bad faith admits of little doubt. (Metropolitan Life Ins. Co. v. McTague, 49 N. J. L. 587, [60 Am. Rep. 661, 9 Atl. 768]; Metropolitan Life Ins. Co. v. Brubaker, 78 Kan. 146, [130 Am. St. Rep. 356, 16 Ann. Cas. 267, 18 L. R. A. (N. S.) 362, 96 Pac. 62]; Bryant v. Modern Woodmen of America, 86 Neb. 372, [21 Ann. Cas. 365, 27 L. R. A. (N. S.) 326, 125 N. W. 621]; McCollum v. New York Life Ins. Co., 124 N. Y. 642, [27 N. E. 412]; 3 Cooley's Briefs, p. 2109; Civ. Code, secs. 2561, 2579.) The trial judge appears to have recognized the facts con

42 Cal. App.-10

cerning the accident were undisputed. It is impossible to reconcile the verdict of the jury, to the effect that the answer to this question was true, save and except upon the theory that the injury sustained at the time, however severe and serious in character it may have been, did not, in the minds of the jurors, tend to increase the risk assumed by defendant in insuring McEwen's life. This conclusion, no doubt, was due to an instruction given by the court, which we deem clearly erroneous. The court, after referring to the accident which the evidence established, stated to the jury: "No mention is made of this by the deceased in this application. If you find from the evidence that the deceased was struck or kicked by a mule and that as a result of the injury so received he was disabled for a number of weeks, and unable to continue his occupation from July 2, 1909, to August 26, 1909, that he was not able to continue in his occupation during that period, that the injury was such as it might have a tendency to affect the longevity of the deceased, then you will find that the answer to that question was false." In view of the uncontradicted evidence, it is impossible to conceive of the jury reaching the verdict rendered except upon the hypothesis that the accident and resultant injury therefrom did not "have a tendency to affect the longevity of the deceased." Not only was the instruction erroneous, but it was clearly prejudicial to defendant, in that except for it the verdict must, upon the evidence, have been a negative answer. The opinion of the jury upon the question as to whether the injury affected his longevity had nothing to do with the truth of the answer. By asking the question as to accidents the company fixes its estimate of its importance and the applicant agrees thereto. Had the answer been true, the information would have afforded means for the company to determine whether the life of one so injured was a desirable risk. "It would be a violation of the legal rights of the company to take from it its acknowledged power, thus to make its opinion the standard of what is material, and to leave that point to the determination of a jury." (Jeffries v. Economical etc. Ins. Co., 22 Wall. 47, [22 L. Ed. 833, see, also, Rose's U. S. Notes]; Hubbard v. Mutual etc. Assn., 100 Fed. 726, [40 C. C. A. 665].) Certainly, considering the nature of the injury sustained by the appli