110 Ky. 26 | Ky. Ct. App. | 1901
Opinion of the court by
-Affirming.
Appellant on September 5, 1890, issued to John 8. Hughes a policy by which, in consideration of ten annual payments of $46.02 each, it insured -his life in the sum of $1,000, the loss to- be paid to. his personal representative at his death. Hughes made seven annual payments on the policy, and died on June 28, 1897. Appellee, as his administrator, filed this suit on the policy; and appellant resisted a recovery of the full amount, insisting that only the reserve value of the policy, which -amounted to $151.84, could be recovered. The policy was subject to these conditions: “(2) The insured shall not, without the written consent of the company, keep a liquor saloon, or personally engage in blasting, mining, or submarine operations, or serve in any capacity on any vessel, boat, or railway train, or in the production ojf highly-inflamm-able or explosive substances, or enter any military or naval service whatsoever, the militia excepted. (3) In case the person whose life is’insured shall become intemperate in the use
It is insisted for appellant that the court should also have instructed the .jury that if Hughes became intemperate in the use of intoxicating liquors, and continued in the intemperate use of such liquors, up to the time of his last illness, they should only find for the plaintiff $151.84. An instruction to this effect was asked by appellant on the trial, andl was properly refused; for it was not a condition in the policy that only the reserve fund could be recovered if the insured continued in the intemperate use of intoxicating liquor up to the time of his last illness. The condition of the policy is, should the insured die during the violation of the clause referred to. The insured having been an invalid for six months before he died, and his habits during that time good as to the use of intoxicating liquor, it can not be said that he died during a violation of
It is also insisted for appellant that the court erred in instructing the jury that there might be recovery of the full amount of the policy, although the insured was at his death the keeper of a liquor saloon, if appellant had notice of this fact, and with such notice continued to accept the premiums from him. But the second instruction given by the court is taken substantially from the third and fourth instructions asked by appellant, and it can not complain of an instruction which it asked itself. The third and fourth instructions asked by appellant on the trial both conceded that it could not make this defense if it accepted the premiums with knowledge of the facts. They only differ from the one given by the court in qualifying the notice necessary. Where a principle of law is conceded by both parties on the trial, in the instructions they asked, this court .will not ordinarily reverse; and, on the facts of this case, we are of opinion there should not be a reversal here. The insured was not at the time of his death the keeper of a liquor saloon within the meaning of the contract. The condition, “should the insure die during” the violation of the preceding clauses, refers only to the state of things existing at his death. For six months before his death the insured had been an invalid. He had followed no occupation, and, while he was the owner of a half interest in-the saloon, he did not ‘keep a liquor saloon” during that time. If up to December, 1896, he had served as brakeman on a railway, or as a deck hand on -a steamboat, and had then become an invalid, and after that time had not engaged in the service any more, it could not be maintained that his death under such circumstances would have come within the meaning of the contract. The pur