Des Moines Life Ins. Co. v. Clay

• Decision Date: 01 February 1909
• Citation: 116 S.W. 232
• Parties: DES MOINES LIFE INS. CO. v. CLAY.
• Court: Arkansas Supreme Court

116 S.W. 232

DES MOINES LIFE INS. CO. v. CLAY.

Supreme Court of Arkansas.

February 1, 1909.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by H. P. Clay, administrator, against the Des Moines Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bradshaw, Rhaton & Helen, for appellant. J. C. Marshall, for appellee.

McCULLOCH, J.

This is an action upon an insurance policy issued by appellant company on the life of one Vinson. The policy was issued on July 23, 1903, and Vinson died December 12, 1906. It was issued on an application containing answers to questions propounded by the company's medical examiner, the truth of which were warranted. The answer of appellant assigns breaches of the warranty of the truth of certain answers of the insured, and each will be discussed in the order in which they appear.

The first series of questions, the answers to which are alleged to be untrue, all relate to the use of intoxicants by the insured, and are as follows: "(1) Do you use wine, spirits, malt liquors, or other alcoholic beverages? A. No. (2) If not, state how long you have been a total abstainer. A. All my life. (3) State kind used, and how much in any one day at the most. A. None. (4) How frequently do you use the amount stated? A. No time. (5) Do you use either or any of them daily? If so, state kind used and daily average. A. No." The evidence tended to show that the insured drank intoxicants at times and had been intoxicated, but that he did not use intoxicants habitually. The court in its instructions to the jury submitted the question as a breach of the warranty, whether or not the assured was addicted to the customary or habitual use of alcoholic beverages. The instructions requested by appellant's counsel also submitted the question as a breach of warranty whether the assured "was addicted to the use of intoxicating liquors"; but the court amended them by adding the words "habitual or customary" before the word "use," and gave them as thus modified. We see no substantial difference between the two sets of instructions. If the questions and answers related to "addiction" to the use of liquor as stated in appellant's requested instructions, it meant an habitual or customary use. "Addict" means to apply habitually, to devote, to habituate. Webster. These questions and answers must be read in connection with and are explanatory of each other, and when thus read we are of the opinion that they relate to the customary or habitual use of intoxicants, and not to occasional or exceptional use. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, 73 S. W. 102, 100 Am. St. Rep. 73; Mutual Reserve Fund Co. v. Cotter, 81 Ark. 205, 99 S. W. 67. Appellant's own instructions which it requested the court to give to the jury so construed the question.

The next question was as follows: "(6) How many times have you been intoxicated in the past three years? A. No time." This question related to a specific fact, that of intoxication within a given time, and the literal truth of the answer was warranted. Counsel contended that the undisputed evidence establishes the fact that the assured was intoxicated within three years prior to the date of the application for insurance. We do not think they are correct in this contention. One witness testified to that fact, and the jury would have...