152 Ky. 447 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
On January 28, 1910, Thomas C. Tousey applied for insurance cm his life, in the sum of $1,000.00, by written application to the Columbia Life Insurance Company, of Cincinnati, Ohio. On February 9, 1910, a policy, payable, to his wife, Fannie K. Tousey, was issued and delivered to him. He died on December 2nd, following. Proofs of claim were made out and submitted to the company. The company declined to pay and, on September 13, 1911, suit on the policy was filed in the Breckinridge circuit court. The company answered, admitting the issual of the .policy and the payment of the premium, but sought to avoid liability upon the ground that the applicant, in his medical examination, had made certain misrepresentations, which were material to the risk, and by reason of which the company was absolved from liability. The beneficiary, the plaintiff, joined issue with the defendant on the truth of the statements relied upon to defeat the collection of the policy; and, upon this issue, the ease went to trial before a jury, with the result that plaintiff recovered a verdict for the amount sued for. The defendant company appeals, and seeks a reversal upon three grounds: First, it is insisted that the verdict is flagrantly against the evidence; second, that the court misinstruoted the jury; and third, the court erred in not taking the case from the jury, on motion of both plaintiff and defendant for a peremptory instruction.
Disposing of these questions in their inverse order, the record shows that, at the conclusion of the evidence, the appellant moved for a peremptory instruction, based upon the idea that the overwhelming weight of the evi
The issue is a narrow one and, in instructing the jury; the court followed the instructions approved by this court in National Protective Legion v. Allphin, 141 Ky., 777 and Metropolitan Life Insurance Co. v. Ford, 126 Ky., 49, where the identical questions, here raised, were involved, and we are df opinion that these instructions fairly and fully presented the issue.
The remaining question, viz: that the verdict is flagrantly against the -evidence, is the serious one in the case and that which is most relied upon by counsel for a -reversal. The questions asked, the answers to which, it is alleged, were false and fraudulent are:
1. “What is your practice as regards the use of spirits, wines, malt liquors, or other alcoholic beverage ? A. Kind, nothing. Amount, none. How often, never. 2. Have you ever drunk to intoxication during the five years last past? If so, how many times? A. No. 3. Have' you ever taken any special treatment for inebriety? A. No.”
These questions and answers appear in the medical examination. At the conclusion thereof is the following clause: “I hereby declare that I have reviewed and understand all of the above questions and answers thereto, and they are hereby made a part of my application for insurance in the Columbia Life Insurance Company, and that said answers and each of them as written are full, •complete and true.” In the application, there appears this question, “Are you now in good health? A. Yes.” and the following clause: “I hereby agree for myself or for any person who may have or claim any interest in any policy which may be issued upon this application, as follows: 1. That all the foregoing statements and answers and all those that I make to the company’s medical examiner, in part II of this application, are full, complete and true, and are offered to the Company as a consideration for the policy, which I hereby agree to accept.”
While counsel ¡for appellant insist, with great earnestness, that all of the foregoing answers were untrue, and known, to be untrue 'by the applicant, at the time they were made, particular stress is laid upon the answers fo question's 1. and 3., made to the medical examiner.
“1. Action; performance; -operation; also, -action; deed; proceeding.
“2. Actual performance -or application lof knowl*452 edge; distinguished from theory, profession, etc., esp. such actual performance or application habitually engaged in; often repeated or customary action; usage, habit, custom; as the practice of rising early or working hard.”
The word “practice,” as it is used in this application, was evidently used in the sense of custom, habit; and, as this definition is one of the proper definitions of the word, and indeed, is the usually accepted sense in which the word is used, we can best determine from the evidence of these various witnesses, as to whether or not the answers made" by the applicant, in the three-fold form in which he was required to answer, were or not untrue. Substituting the word “habit” or “custom” for the word “practice,” the question reads, “"What is yonr custom as regards the use of .spirits; etc?” Were the answers made to this question false? The applicant’s attention, was directed to his custom, or habit, in the use of liquor, and, unless' he felt that he had been addicted to the use of alcoholic liquors to such an extent that it might he said that he had acquired a habit or custom, in their use, he was justified in answering as he did; for, the question being framed as it was, he was only required to speak with reference to his custom, or habit, in their use, and if he had acquired no such custom, .his answer was literally true. Most of the witnesses testify to have seen him take but one drink, in a period of their intimate acquaintance with him covering several year's. Two or three witnesses state that they saw him take two, and perhaps three drinks in this time.' Would such acts on his part be sufficient to establish a custom? May a custom be established by occasional acts, or must they be indulged in, with such degree of frequency, that they can be said to have become fixed? For example, if a man rises early two mornings in the year and late 363, it could hardly be said, with accuracy, that he 'had acquired a custom of rising early; or, if, during the year, he would rise early as often as fifteen ,or twenty times and late the remaining mornings of the year,' it could not be said that he had acquired the custom of rising early. If asked what his custom for early rising was, he could truthfully - s'ay that he did not have the habit of early rising. Adopting ithe rule of placing that construction upon the use of words, in an 'application for insurance, most favorable to the insured, the word “p-rae
When this evidence is critically analyzed, it is apparent that, if the applicant had 'Stated in' the .application that he took as many as four or five drinks in. the course of a year, no insurance company would have rejected the risk on this ground. There is no evidence in the record showing that, on this 'State of fact, the appellant company would have rejected the risk; or that evidence of an indulgence in intoxicants, to the degree shown in this case, would have been sufficient to have caused the company to' reject the risk. There .are several witnesses of unimpeachable character, from whose testimony it is apparent that, during .a life of lover twenty or thirty years, the applicant wias known to be sober, industrious, and a hard working man, with regular habits.
There is some evidence to the effect that, some fifteen or twenty years prior to the date of the application for 'this policy, he took a treatment known as the Keeley treatment. There is no evidence, save the affidavit filed by counsel as to what am absent witness would testify to, showing that the applicant had, prior to the date when he took this treatment, been addicted to the excessive use of liquor of any character. He may have, taken the treatment' for the drug, or some other habit, and, in the absence of a showing that the treatment was taken for inebriety, the jury would not be warranted in holding that it was taken for this purpose. The overwhelming weight of tbe evidence is to the effect that the applicant never was, at any time in his life, an inebriate, even though, it be conceded that the two witnesses, who testified that they saw him intoxicated on one occasion, are correct in their diagnosis of his case. Such evidence is not sufficient to establish the charge of inebriety, or to show that ten or fifteen years, prior thereto the applicant was an inebriate. On the contrary, the evidence of his employer, and that of others with whom he was associated daily at that time, shows conclusively that, if he was addicted to the use of intoxicating liquors to any extent whatever, they did not know it; and cer
It is next insisted that t'he. answer in the application, “I am in good health,” was, and known to 'him to be, untrue'. The application was made, as stated, on January 28, 1910. He died of chronic nephritis in December, 1910. Dr. A. A. iS'imons testifies that he was called to treat him about the middle of April, 1910, and found him to. be suffering with Bright’s disease, and he' was of opinion that, inasmuch as, at that time, it was in an acute stage, it had existed for .some years and did exist, at the time the application was made. Dr. R. L. Light-foot, the physician who made the medical examination for the company, testifies that he subjected ithe applicant’s urine to the nsual and customary tests, at the time the application was made, and that he found no evidence o!f Bright’s desease. There is- not an iota of evidence in the record that the applicant ever knew, or had any reason to believe, prior to. the time when Dr. .Simons waited upon him in April, that be had anything the matter with him. He attended to the duties of his office daily, worked from early in the morning until late in the evening, .and even when Dr. Simons was treating him, he evidently did not regard the trouble as serious, for he continued in the discharge of ‘his duties without interruption, until along early in October before his death. As stated in National Protective Legion v. Allphin, 141 Ky., 777, a defense must be based upon something more than theory. The burden of showing that his answer, “I am in good health,” is not trne, is upon the company. The applicant, in response to the question, was giving his opinion, and, in order to- make out its case upon this point, it was incumbent upon the company to show that there were facts within the knowledge olf the applicant, at that time, which made it known to -him that this answer was not true, such as., that he had been treated by some physician and that physician had told him that this was the trouble, with which he was suffering; or, that he had been rejected by other insurance -companies because, upon examination, it was found that he was suffering with Bright’s disease. But, in the absence of any showing of any fact, from which it could be inferred that the applicant know, or 'had reason to believe that -he had
The only remaining question which, it is alleged, the applicant made an untrue answer to, is: “Have you ever drunk to intoxication, during the five years last past?” As stated, two witnesses testify that they had seen the applicant intoxicated! upon one occasion, and one .witness testifies that on perhaps one occasion he saw the applicant when he was intoxicated. The extent of the intoxir cation is not shown nor does- he fix the time within the limit prescribed by the answer. The word intoxication is so- brotad in its significance that, -as stated in National Council of Knights and Ladies of Security v. Wilson, Guardian, 147 Ky., 293, what one would determine to be a state of intoxication would be regarded by another, as duly sober; and, inasmuch as the applicant was, at no time, shown to have -been unable to care for himself or to go- about his business, it cannot be said, even if it be conceded ¡that all the witnesses say was true, that the answer made to this question was either false or fraudulent.
Upon a careful examination of the entire record, we are of opinion that 'appellant utterly failed' to- establish any habit or custom whatever on the part of the applicant, in the use of intoxicants; and while the evidence does show that he took a treatment known as -the Keeley treatment, it fails to show that it was taken for inebriety; and there is no evidence whatever to support the charge that, at the time the application wias made the applicant was not in good health.
Judgment affirmed.