Guiltinan v. Metro. Life Ins. Co.

• Decision Date: 27 July 1897
• Citation: 69 Vt. 469,38 A. 315
• Parties: GUILTINAN v. METROPOLITAN LIFE INS. CO.
• Court: Vermont Supreme Court

38 A. 315

69 Vt. 469

GUILTINAN

v. METROPOLITAN LIFE INS. CO.

Supreme Court of Vermont. Bennington.

July 27, 1897.

Exceptions from Bennington county court; Thompson, Judge.

General and special assumpsit by Francis Guiltinan, administrator of the estate of Michael J. Guiltinan, deceased, against the Metropolitan Life Insurance Company, upon a policy of life insurance. Plea, the general issue, with notice of special matter in defense. There were general and special verdicts, and judgment thereon for plaintiff, and defendant excepts. Affirmed.

The application contained the following questions, each of which the applicant answered in the negative: "Question H. Are you now, either directly or indirectly, concerned in either the manufacture or sale of any kind of alcoholic beverages? Question Ha. Have you ever been so engaged?" Rolan Taylor, a witness for the defendant, testified that in the spring before the application was made he frequently visited the hotel in which the insured was then employed, in the village of Bennington, and as many as 10 times purchased whisky, which was sold to him by, and for which he paid, the insured. The plaintiff produced Harry Kennon, who testified that he was the manager of the hotel during that period, and had control of the bar, and that, while the insured might possibly have served some liquor, the witness was never aware of it, and had almost the constant oversight of the business. The plaintiff also produced other witnesses, who knew the insured and were frequently about the hotel during that period, who testified that they had never seen the insured take any part in the sale of liquors. There was no other testimony to contradict that of Taylor. At the conclusion of the evidence the defendant moved for a verdict on the ground that the undisputed evidence showed that the answers to questions H and H a were false. The motion was denied, pro forma, and the defendant excepted. The plaintiff introduced the proof of death. In argument to the jury, counsel for the plaintiff, against the objection and exception of the defendant, was allowed to call attention to the statement of the defendant's agent thereon to the effect that he believed the statements of the physician to be true, among which statements was one certifying that the insured used no intoxicants except by his (the physician's) order, whereas the defendant was now attempting to defeat the policy on the ground, among others, that the insured had been addicted to the use of intoxicants, and to say, "if that is the way this company is going to treat its policy holders, the policy holders need some protection by statute." The court instructed the jury to return special verdicts with reference to the truth of each of the answers in the application which the defendant claimed to be false, and, in case any of the answers were untrue, to return a general verdict for the defendant, but that the burden was upon the defendant to show that the answers were untrue, to which the defendant excepted. The defendant requested the court to charge that if the insured, before the date of the application, had ever, as clerk, servant, or agent, sold alcoholic beverages, he was "engaged in the sale," within the meaning of the contract. The court declined, and the defendant excepted.

Batchelder & Bates and Barber & Darling, for plaintiff.

Dillingham, Huse & Howland and F. C. Archibald, for defendant.

The exception to the ruling of the court, "that the burden of proof to establish by fair balance of testimony that there was a breach of warranty by reason of the answers relied upon as being false having been in fact untrue rests upon the defendant," should be sustained. Wilson v. Insurance Co., 4 R. I. 159; Sweeney v. Insurance Co. (R. I.) 36 Atl. 8; Craig v. Insurance Co., 1 Pet. C. C. 410, Fed. Cas. No. 3.340; Phil. Ins. § 2122; McLoon v. Insurance Co., 100 Mass. 472.

TYLER, J. There was no error in the refusal of the trial court to direct a verdict for the defendant. The testimony of Kenyon and other witnesses called by the plaintiff tended to contradict the testimony of Taylor, and it became a question of fact for the jury whether or not the insured ever sold any liquor while he was employed at the hotel. In answer to questions in the application, the insured stated that he was not then, and never had been, directly or indirectly, engaged in the manufacture or sale of alcoholic beverages. The court instructed the jury that if he was employed in that house generally to do what he was called upon to do from day to day, and as a part of that general employment he sold alcoholic beverages to the guests as they called for them, he was engaged in the sale of alcoholic beverages, within the meaning of the contract; but, on the other hand, if this was no part of his general business or employment, even though he did occasionally, out of his ordinary line of duties, by direction of his employer, or otherwise, furnish the guests with intoxicating liquors, and take pay for them, he was not engaged in such sale, within the meaning of the contract. This instruction was correct. The word "engaged," as used in the application, means "occupied," and does not relate to an occasional act outside of a regular employment, and the obvious purpose of the question was that the defendant might be informed whether or not this was the applicant's occupation. The defendant could have no interest to ascertain whether the applicant, as a servant of the hotel, was occasionally called upon to furnish liquor to a guest.

The defendant charged that the insured obtained the policy of insurance by fraud. Therefore the instruction...