31 Ind. App. 28 | Ind. Ct. App. | 1903
Appellee obtained a- judgment upon a policy of insurance. Overruling a motion for a new trial is the only error assigned that is argued.
In the application signed by the insured is the following: “I, the applicant for insurance, hereby declare and warrant that I am not now afflicted with any disease or disorder, so far as I know, and that I do not now, and will
Appellant defended upon the ground that after the date of the application, April 28, 1899, the insured used intoxicating liquors to excess, and that such dissipation contributed to his death October 12, 1900. After a witness — a physician — had stated that he meant by “alcoholism” the excessive use of alcohol, or beverages containing alcohol, he was ashed: “Are the effects produced by alcohol easily observed under circumstances of that kind ? A. In excessive alcoholism they are easily observed.” There was no reversible error in striking out this answer. The answer is not responsive to the question. The witness had defined “alcoholism” as the excessive use of alcohol, and it was about this use of alcohol that he is now asked, and not about excessive alcoholism. From the witness’ own definition there must be a difference between “alcoholism” and “excessive alcoholism,” and the question was not concerning the latter.
There was no reversible error in refusing to permit a medical expert to state whether, in his opinion, he regarded the habitual use of intoxicating liquor to excess as a per
A witness testified on direct examination that he worked at the same place with the insured several months, and had seen him drink liquor, and had seen him drunk. There was no harmful error in permitting the-witness to testify on cross-examination as to complaints made by the witness of pains in his head and chest. It was proper to go into the circumstances in connection with the alleged intoxication. Whether the insured was intoxicated at any time, or used liquor to excess, was a question for the jury to determine, and it was proper for them to consider such facts ■ and circumstances as would show the actual physical condition of the insured at the time.
Complaint is made of the following instruction: “A contract of insurance, like the one in the case at bar, is by the court liberally construed with a view to effectuate its purpose. The language of the policy and of the- interrogatories and provisions of the application are prearranged by the company. In its preparation the insured has no part. Whatever there may be in the language so prepared by the company which has any tendency to defeat the main
While the above instruction contains a correct statement of a principle of the law governing the construction of contracts of insurance (Penn Mut. Life Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769), yet, as the language indicates, it is a rule for the guidance of courts in the construction of such contracts. It has been so long and often held that it is the duty of the court, and not the jury, to construe a contract that is plain and unambiguous, that the citation of authorities is unnecessary. The first sentence in the instruction states a matter of no concern to the jury, and, if it had any effect, the jury doubtless inferred that they should give the contract a liberal construction. It may be the fact, also, that the language of the policy and the provisions of the application were prearranged by the company, and that in the preparation of the policy the insured had no part, but there was no evidence to that effect. Had these been material facts in appellee’s case, an instruction could not assume their truth, where they were not only not proved, but, about which no testimony was offered,, But in the concluding part of the instruction, that, “if- there is any ambiguity in an interrogatory propounded to the applicant, it should be construed most strongly against the company, and most favorably to the insured, in whose favor all doubts should be resolved,” it is left to the jjiry to determine whether there is any ambiguity in the interrogatories asked the applicant; and, if there is, they are told how they should then construe it. We fail to see how the jury could otherwise understand the instruction, than that they were to construe the contract, and that this construction should be made according to certain rules. It is not claimed that the contract is ambiguous. Ho attempt was made to explain
Complaint is also made of tbe sixteenth instruction: “If you find from tbe evidence, that from tbe nature of tbe deceased’s employment, and bis physical condition occasioned thereby, if it were so occasioned, be became weak and exhausted, and was compelled to, and did, resort to stimulants, as be believed, for bis own protection, and to enable him to continue bis labors, and, in so doing, occasionally, or at times, drank intoxicating liquors even to tbe extent of being under tbe influence thereof, such indulgence could not be termed excessive, and could not be urged as a defense to this action, unless you further find from tbe evidence that such indulgences were excessive, or that they tended to, or did, shorten bis life.” This instruction is erroneous. If tbe jury understood it to mean — and we think they would so understand tbe language used — that tbe insured might use intoxicating liquors to any extent that be believed necessary for bis own protection, and to enable him to continue his labors, it left it with tbe insured tc determine for himself what would be an excessive use of liquors. Tbe contract was violated if be used intoxicating liquor to excess, and -to say, in effect, that be might make such use of liquors as he believed for bis own protection is to annul that part of tbe contract. Moreover, tbe instruction is contradictory. It tells tbe jury that if they find tbe physical condition of tbe insured was such that be resorted to stimulants, as be believed, for bis own protection, and to continue bis labors, and at times drank liquors, even to tbe extent of being under tbe influence thereof, such indulgence could not be termed excessive, and would not be a defense unless they found such indulg
Judgment reversed, with instructions to sustain appellant’s motion for a neAV trial.