Meacham v. New York State Mut. Ben. Ass'n

• Decision Date: 15 April 1890
• Citation: 24 N.E. 283,120 N.Y. 237
• Parties: MEACHAM v. NEW YORK STATE MUT. BEN. ASS'N.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 237

24 N.E. 283

MEACHAM

v.NEW YORK STATE MUT. BEN. ASS'N.

Court of Appeals of New York,

Second Division.

April 15, 1890.

Appeal from a judgment of the general term, fourth department, entered on an order affirming a judgment of the circuit in favor of the plaintiff. The action was brought to recover the sum of $2,000, claimed to be due upon a certificate or policy of insurance issued upon the life of Charles E. Hay, then the husband of the plaintiff. The application was made August 12, 1884; the certificate bears the date of two days later; and on the 23d of that month Hay died by his own hand. Other facts appear in the opinion.

T. K. Fuller, for appellant.

A. P. Smith, for respondent.

PARKER, J., ( after stating the facts as above.)

The exception taken to the refusal of the court to nonsuit the plaintiff at the close of the testimony presents the only question reviewable here. Several grounds are assigned for error because of such reversal. By the terms of the contract of insurance, the represen tations and answers of the insured embraced within the application for membership or physician's certificate are made warranties, and unless substantially true the policy is invalid. The application contained the following questions and answers: ‘Question. Is applicant temperate and correct in his habits? Answer. Yes. Q. Does applicant promise to remain temperate? A. Yes.’ The appellant contends that the representations made were untrue and that the promise was not fulfilled, and as a result the policy became of no effect. With reference to the first answer, the defendant's evidence tended to show that Hay drank frequently for a few days prior and subsequent to the date of the policy of insurance; that during that time he had been in the company of bad women in Owego, and had been drunk. With the exception of proof of intoxication on one occasion, the evidence introduced for the purpose of establishing that his habits were intemperate or otherwise incorrect was confined to a period of about 15 days preceding his death. On the part of the plaintiff, witnesses, who had known him all his life or for a long time, testified that he was temperate, and not accustomed to drinking, and that his habits were good. Evidence was also presented tending to show that he was not in Owego at the time fixed by defendant as the occasion when he, it is claimed, was intoxicated, and in company with a lewd woman. We do not think the evidence authorized the court to hold, as a matter of law, that Hay was not temperate, within the meaning of the policy. This court said in Van Valkenburgh v. Insurance Co., 70 N. Y. 605, that the question, do you “use any intoxicating liquors or substances?' did not direct the mind to a single or incidental use, but to a customary or habitual use.' Much less, therefore, does an inquiry as to whether an applicant be temperate call his attention to occasional use. The word ‘temperate’ suggests moderation, not abstinence; and the warranty is to the effect that his habit is to refrain from excessive indulgence in the use of intoxicants, and not that he abstains from all use. The evidence, therefore, presented a question of fact for the determination of the jury, as to whether at the time of the application he was temperate. Whether he substantially kept his promise to continue temperate was, in view of the evidence, also a question of fact; for he had not engaged to entirely forbear the use of intoxicants, but rather that he would not habitually and excessively indulge in such use.

In his application the insured agreed to be bound by and subject to the by-laws and regulations of the defendant's association. Therein it is provided that ‘this association does not hold itself liable for the payment of any claim when the member has died in violation of the laws of the land. * * *’ The insured having taken his own life, it is urged that...