sumably from debility and the fatigue of his journey, and, at the suggestion of Mr. Matoone, retired to his room soon after supper. There is no direct or satisfactory evidence as to the condition of Mr. Davey's health at this time, and there is no proof that he was under medical treatment, or that he was afflicted with any special disease or complaint. On the day following his arrival he walked over to the Thousand Island House to call on Mr. Matoone, who had not then breakfasted, and passed some little time with that gentleman. On the same day he went out boating for a few hours. On Monday, the 25th of July, and on every succeeding day, with possibly the exception of Sunday, the 31st, he was out on the bay or river, boating and fishing, until Wednesday, the 3d of August, when he was discovered early in the morning in his room, at the Crossman House, prostrated by an attack of illness, which grew rapidly worse, and resulted in his death on Saturday, the 6th.

The certificate of death of the insured was made by Dr. Rae of Jersey City, his family physician, who had been summoned by telegram to attend him, and who answered as follows to the questions relating to the length of his acquaintance with the insured, and to the cause of his death. After stating that he had been called to attend Mr. Davey, on or about the 4th day of August, 1881, and continued with him until the day of his death, he says in reply to the first question:

"(1) How long have you known the deceased? About three years. (2) What was the direct cause of his death? Exhaustion from hematemesis. (3) What were the indirect causes of his death? Exposure to the sun and cirrhosis of the liver. (4) Was his last illness occasioned, or had his general health been impaired, by any pernicious habits? He was in the habit of using stimulants, and a great deal of tobacco. Probably they impaired his health. (5) Was his health impaired by intemperance? See answer to 4. (6) Was his death caused directly or indirectly from intemperance? See answer to 4."

On the presentation of this certificate to the proper officers of the company, it was not only right and proper, but it was incumbent on them, in the discharge of their duty, to inquire further into the circumstances attending the death of Mr. Davey, in order to ascertain whether or not he had fairly kept and performed his part of the contract. Having done this, they became satisfied that he had broken the condition to which your attention has been called; that the policy was thereby forfeited; and that the company was not liable for the amount insured. In taking this course the company cannot be censured or reflected on for adopting any unjust or oppressive measures to resist the payment of what they consider to be an illegal claim. There is certainly enough of doubt and uncertainty in this certificate, as it stands, as to the direct or indirect causes of Mr. Davey's death, to awaken suspicion; and there has also been sufficient evidence submitted to you by the company to justify them in laying the whole case before a jury, and asking for an impartial verdict. This certificate, of itself, and unexplained, is not conclusive evidence of the cause of death; nor is it prima facie proof against the plaintiff, for the reason that it was taken ex parte, and without opportunity for cross-examination; but it becomes a part of the evidence now to be con

sidered by you, in so far as it has been explained by, and incorporated with the oral testimony of, Dr. Rae, who has been examined before you in reference to it, and who has substantially repeated and confirmed its statements. These statements are cautious, guarded, and somewhat indefinite, but not unfairly so, because it is the privilege and right of every physician, under similar circumstances, in the absence of a post mortem examination, to qualify his opinion or judgment of the cause of his patient's death. In giving his opinion, Dr. Rae says that he was guided by his own observation, and by the statements made to him by Dr. Watson, the local physician, who had been called in before his arrival. The certificate gives as the cause of death hematemesis,-the vomiting of blood from the stomach,-which is one of the symptoms of cirrhosis of the liver, that is, a condition of the liver produced in a large propor tion of cases by the excessive or intemperate use of alcoholic liquor for any considerable length of time. Dr. Rae is an intelligent physician, and gave his testimony with apparent candor. He had known the deceased for three years, had attended him professionally, and, as the result of his observation and knowledge, tells you, after certifying the cause of death according to his best judgment, that Mr. Davey was in the habit of using stimulants, and a great deal of tobacco, and that they probably impaired his health.

We have thus particularly directed your attention to the certificate of death, and to the testimony of Dr. Rae in conjunction therewith, because they together will form the starting point in your investigation of the actual and real cause of Mr. Davey's death. You have heard the testimony of Dr. Watson, who was called to see the insured on Wednesday morning, when he was first discovered laboring under the attack which proved fatal, and you will recall his narration of the condition in which he found Mr. Davey, and of what he said about himself. You will not fail to remember the declarations of Mr. Davey, his confession, indeed, that he had been cautioned by his family physician that unless he would stop drinking he would be liable to these attacks, and that he supposed it was all up with him now. Then there is the testimony of Dr. Bruce, who, in the months of July and August, 1881, was acting in the capacity of clerk in the Crossman House, and at the same time was pursuing the study of medicine, and is now a practicing physician, and who saw Mr. Davey very often during his illness. And, finally, there is the evidence of several other persons, boatmen, bar-keepers, and bellboy, who had known Mr. Davey for various periods during his annual sojourns at Alexandria Bay, extending in some cases as far back as seven or eight years before his death; and they told you what they knew in reference to his habits of drinking while there, especially on the occasion of his last visit. One of these witnesses-the oarsman who attended Mr. Davey every day from the 24th of July to August 3, 1881-says that he warned Mr. Davey that "if he didn't stop drinking so much he would kill himself, and was told to mind his own business." In addition to the witnesses who speak from personal observation and knowledge of Mr. Davey's habits, there is the expert testimony of Drs. Phil

lips and Ward, who gave their professional opinion and judgment on the effects of the supposed quantities of liquor taken by Mr. Davey during the eight or ten days preceding his prostration, and also what in their opinion, after hearing the testimony of Drs. Watson and Rae, and of the other witnesses, was the cause of his death. On this evidence, which we have briefly passed in review, the defendant's case rests, and it is claimed by the company to have proved the fact that Mr. Davey violated his contract by becoming so far intemperate as to impair his health, and so rendered the policy void. By way of rebuttal, the plaintiff has produced testimony to show that Mr. Davey had always been, at least subsequent to the date of the policy, and up to the time of his death,—that portion of his life with which we are now more particularly concerned, -a sober man. This testimony comes from the wife and brothers of Mr. Davey, and from two family friends, Mr. Matoone and Mr. Van Horn, none of whom, however, saw him during his last visit at Alexandria Bay, until he was in a dying condition, excepting Mr. Matoone.

Now, gentlemen, you are to consider all the testimony that has been offered by the plaintiff and defendant on this question of the alleged violation of his contract by Mr. Davey, for it is your province to decide on the facts which have been established on the one side or the other. If, after a careful and conscientious examination of the whole evidence, you shall be satisfied that Mr. Davey did, after the date of the policy, become so far intemperate as to impair his health, or induce delirium tremens, your verdict must be for the defendant, but if you shall not be so satisfied, then the plaintiff will be entitled to a verdict for the full amount of the policy, with interest. It is not necessary, in making up your verdict, that you should be satisfied beyond a reasonable doubt of any fact or facts in reference to which evidence has been given in the course of the trial. You are only required to be governed by the weight of the testimony, and on whichever side that weight preponderates your verdict must be rendered.

As you have already been informed, at a former trial of this cause a verdict was rendered for the plaintiff; but, the judgment entered on that verdict having been reversed by the appellate court' in consequence of the erroneous construction, given to the jury in the former trial, of the words, "so far intemperate as to impair his health," the cause has been remanded here to be tried over again under the interpretation put upon those words by the supreme court of the United States. Of course, if the evidence which you have heard satisfies you that Mr. Davey died. from delirium tremens, then there can be no doubt that the policy was thereby forfeited, and the plaintiff cannot recover; but if you shall not be satisfied that he died from that cause, then your attention must be directed to the meaning and import of the words "so far intemperate as to impair his health," and, in order that you may clearly understand the interpretation of that phrase as announced by the supreme court, we will read that portion of the opinion of the court which defines and ex

18 Sup. Ct. Rep. 331.

presses what these words mean. tice HARLAN, says:

The court, speaking through Mr. Jus

"If the substantial cause of the death of the insured was an excessive use of alcoholic stimulants, not taken in good faith for medical purposes, or under medical advice, his health was impaired by intemperance, within the meaning of the words so far intemperate as to impair his health,' although he may not have had delirium tremens, and although, previously to his last illness, he had not indulged in strong drink for such a long period of time, or so frequently, as to become habitually intemperate. Whether death was so caused is a matter to be determined by the jury, under all the evidence."

This language is plain, unequivocal, and cannot be misunderstood. If, therefore, Mr. Davey died from a single debauch, continued for one day or for ten days, he did become "so far intemperate as to impair his health," although he had, previously to his last illness, led a temperate, or even strictly abstemious, life. This construction of the words contained in the third clause of the policy is binding on this and on all other federal courts, and it is your duty, as well as ours, to obey it. You are the judges of the facts and of the credibility of the witnesses, but you must give your obedience to the law as announced by the highest tribunal in the land. In what we have now said to you, we have endeavored to substantially embrace all the requests for special instructions made by the counsel for the plaintiff and defendant respectively, with perhaps one exception, which is this: That in your deliberations you will not be influenced or controlled by any motives of sympathy or prejudice for or against either of the parties to this action, but that you will render a verdict according to the evidence,a just and impartial verdict, which will command the approval of your own consciences.

Verdict for the plaintiff.

CHICAGO, B. & Q. R. Co. v. DEY et al., Railroad Commissioners. CHICAGO, M. & St. P. Ry. Co. v. SAME.

(Circuit Court, S. D. Iowa, C. D. February 2, 1889.)

1. RAILROAD COMMISSIONERS-REGULATION OF CHARGES.

Act Iowa, April 5, 1888, provides for the regulation of transportation charges by railroad companies, and for a board of commissioners to fix reasonable charges. Section 17 requires said board to make a schedule of maximum rates, which shall be deemed prima facie reasonable. Sections 18 and 20 provide that any person may complain that the charges made or published by any company, are higher than those fixed by the schedule, or that the latter are unreasonably high, upon which the board shall investigate the complaint. The decision made thereon shall set out the maximum rates to be charged thereafter, and neither the decision nor the schedule therein contained shall be limited to the case complained of, but shall extend to all such rates between points in the state, and to whatever part of the line of said road within the state as may have been fairly within the scope of the investigation. Held, that the power to make a full schedule is not only conferred by section 17, but is given also by said other sections, in case a complaint has been made and investigated.

2. SAME.

On a bill to restrain the board from carrying into effect a schedule of rates so established on the ground that they are so low as to be ruinous to the business of the road, if the evidence as to the probability of loss is so conflicting that the effect of the rates is doubtful, and largely dependent on future developments, and only about 4 per cent. of the local traffic will be affected by the reduced rate, relief will not be granted until experience has demonstrated that the rates are not compensatory.

3. SAME-VIOLATION OF INJUNCTION.

It is not a violation of a temporary injunction against putting in force a schedule of rates made pursuant to said section 17, on the ground that they were unreasonably low, for the commissioners to make another schedule after investigating a complaint filed against rates charged by a railroad company, although the purpose of those making the complaint was to evade the injunction, and their conduct in attempting to procure a favorable decision on the complaint was improper, as the duty of the commissioners under the statute was to hear the complaint and establish proper rates.

Bill by the Chicago, Burlington & Quincy Railroad Company, to restrain Peter A. Dey and others, constituting the board of railroad commissioners of the state of Iowa, from putting in force a schedule of charges. A preliminary injunction was granted in this and two other similar cases, but one opinion being filed, Railway Co. v. Dey, 35 Fed. Rep. 866, to which reference is made for a fuller discussion of the questions herein considered, and for the statute under which the commissioners acted in making the schedule complained of.

Wirt Dexter, for complainant.

A. J. Baker, Atty. Gen., for defendants.

BREWER, J. This case is submitted on an application for a temporary injunction. On the 28th of June, 1888, this complainant filed a bill in this court asking an injunction restraining the defendants as railroad commissioners of the state of Iowa from putting in force a certain schedule of rates on freight. After a lengthy hearing, and on the 27th day of July, a temporary injunction was issued as prayed for. Now the complainant files this, a supplemental bill, alleging that defendants are seeking to evade the force of that injunction, and to cast upon complainant a schedule of rates substantially the same as that heretofore enjoined, or at least that the difference is so slight as to indicate a mere evasion. The gist of the complaint is that certain jobbers and manufacturers of Iowa, interested in reducing the rates of freight, formed associations for that purpose, and employed special counsel to assist the attorney general in resisting the original application. That after the injunction had been granted a meeting of such jobbers and manufacturers was held in Davenport on August 14th, for the purpose of devising and adopting a plan of procedure for evading the operation of such injunction. In pursuance of the plan devised a circular was sent out, marked "Strictly Confidential," to various parties in the state, in which it was recited that sections 18, 19, and 20 authorized complaints to the railroad commissioners of every unreasonable charge, and required the commissioners upon such complaints to summon the railroad making such charge to appear and show that it was a reasonable one; and, if found by the comv.38F.no.8-42