Metropolitan Life Insurance Co. v. Shane

• Decision Date: 06 March 1911
• Parties: METROPOLITAN LIFE INSURANCE COMPANY v. SHANE
• Court: Arkansas Supreme Court

135 S.W. 836

98 Ark. 132

METROPOLITAN LIFE INSURANCE COMPANY v. SHANE

Supreme Court of Arkansas

March 6, 1911

Appeal from Clay Circuit Court, Eastern District; Frank Smith Judge; affirmed.

Judgment affirmed.

L Hunter, for appellant.

The insured made false answers as to his habits of drinking, and that avoids the policy. 58 Ark. 528; 71 Ark. 295; 72 Ark 620; 74 Ark. 1; 62 L. R. A. 774; 134 Ill.App. 464; 35 A. 179; 81 N.W. 807.

Spence & Dudley, for appellant.

The right to open and close is not one of discretion under the law. Elliott, App. Prac. § 671; Thompson on Trials, vol. 1, § 231; 59 Ark. 140. The beneficiary took a vested interest in the policy as soon as it was issued. 31 L. R. A. 67.

J. H. Hill and G. B. Oliver, for appellee.

The ability to distinguish right from wrong is the test as to whether one is liable for homicide. 64 Ark. 523; 54 Ark. 588. A case should not be reversed for harmless error. 133 S.W. 168. The word use means habitual and customary use, not occasional use. 71 Ark. 295; 81 Ark. 205; 89 Ark. 230; 84 S.W. 656; 126 F. 360. But if the answer was false, it was not a warranty. Cooley's Briefs on Ins. p. 1931; 58 Ark. 533.

OPINION

FRAUENTHAL, J.

This was an action instituted by D. M. Shane as administrator of the estate of L. V. Shane, deceased, to recover upon a policy of insurance issued upon the life of said decedent. The policy was executed on July 29, 1909, and the wife of the insured, Louisiana Shane, was named as beneficiary therein. The insured was killed on August 29, 1909, by his said wife, who thereupon committed suicide. The suit was instituted against the Metropolitan Life Insurance Company, which issued the policy, and also against Z. B. Harrison, the administrator of the estate of said Louisiana Shane; and in the complaint it was alleged that said Louisiana Shane, the beneficiary named in the policy, had wilfully, unlawfully and feloniously killed said insured, and on that account the said beneficiary had forfeited all rights under the policy, and the estate of the insured was entitled to recover thereon.

The administrator of the estate of Louisiana Shane filed an answer and also an intervention in which he admitted that his decedent had killed the insured, but alleged that at the time she was insane, and on that account not legally liable for said act; and he sought a recovery on said policy because she was named as the beneficiary therein.

The Insurance Company denied all liability on the policy upon the ground that it had issued same by reason of certain false warranties made by the insured which avoided the policy.

The cause was submitted to a jury to determine whether or not the Insurance Company was liable on said policy and also to determine the respective rights of the plaintiff and the intervener to recover thereon in event the Insurance Company was liable. The jury returned a verdict finding that the Insurance Company was liable upon the policy, and also that said Louisiana Shane was sane when she killed the insured; and thereupon the court rendered a judgment in favor of the plaintiff and against the Insurance Company for the amount of the policy and also for the penalty and attorney's fee provided for by the statute. From that judgment both the Insurance Company and the intervener have appealed to this court.

The policy was issued on an application made by the insured containing answers to questions propounded by the company's medical examiner which were material to the risk, and the truth of which we think was warranted by the assured. The Insurance Company alleged, and now urges, that the insured made certain answers to questions propounded relative to his habits as to the use of intoxicating liquors which were untrue. It claims that the truth of these answers was warranted, and that their falsity avoided the policy. The following are the said questions propounded to and the answers made by the insured: "Q. To what daily or other extent do you use tobacco? Answer. Twenty-five cents a week. Question. Opium or other narcotics? Answer. No. Q. Alcoholic stimulants? Ans. None. Wine or malt liquors? Ans. None." And to the question: "Have you ever used opium, or other narcotics, or ever used alcoholic stimulants, wine or malt liquors or tobacco to any excess? If so, when and for how long? Give particulars," the answer was, "No."

According to the evidence adduced upon the trial, the insured had lived for some years at or near Malden, Missouri, and about five or six years prior to his death he had moved to Rector, Arkansas.

The evidence on the part of the Insurance Company tended to prove that while living at or near Malden he often drank intoxicating liquor until he became under its influence, and that after he moved to Rector he sometimes drank intoxicants and was drunk. But the testimony on the part of the plaintiff tended to prove that while at Malden insured only drank intoxicating liquor occasionally, and that after he moved to Rector and for two years prior to his death he was never seen under the influence of intoxicants, and did not drink intoxicating liquors.

The court in its instructions submitted the question to the jury as to whether or not there had been a breach of the warranty by reason of the use by the insured of intoxicating liquors and of his use thereof to excess, and therein stated to the jury that "the word 'use' in the questions relative to intoxicating liquors means habitual or customary use, and the answers thereto would not be false and untrue if the proof shows only an occasional or exceptional use, even though at several times the assured became visibly intoxicated."

We think that the court committed no error in the instruction which it thus gave to the jury. The above questions and answers relative to the use by the insured of intoxicating liquors, we think, refer to the customary or habitual use thereof, and not merely to an occasional use thereof or an exceptional use to excess. The questions and answers as to his use of intoxicants manifestly refer to his habits in that regard. The habit of a person contemplates a course of conduct which is customary and shows that he has acquired a tendency to pursue that course of conduct from frequent repetitions of the same act. It does not contemplate occasional or exceptional acts.

From the language of the above questions and answers made by the insured in his application for this policy we do not think that it was contemplated that the policy should become void because of an occasional use of intoxicants or because of an occasional excessive use thereof, but only when such use or excess had become a habit by frequent repetitions.

This has been the construction adopted by this court of questions and answers made in applications for life insurance policies similar to those made in the application for the policy involved in this case. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, 73 S.W. 102; Mutual Reserve Fund Life Assn. v. Cotter, 81 Ark. 205, 99 S.W. 67; Des Moines Life Ins. Co. v. Clay, 89 Ark. 230, 116 S.W. 232. See also Knickerbocker Life Ins. Co. v. Foley, 105 U.S. 350, 26 L.Ed. 1055; Northwestern Mut. Life Ins. Co. v. Muskegon Nat. Bank, 122 U.S. 501, 30 L.Ed. 1100, 7 S.Ct. 1221.

It is urged by counsel for the Insurance Company that the court erred in assessing against it a penalty and attorney's fees in pursuance of the statute enacted by the General Assembly of 1905 (Acts 1905, p. 308); and this contention is made upon the ground that no demand was made for the payment of the policy prior to institution of this suit. But we think that there was sufficient testimony adduced upon the trial from which the court was warranted in finding that such a demand was made, and that the Insurance Company did not pay the policy because it denied liability. The policy provided no specific, time in which payment should be made after the death of the insured. It was therefore payable within a reasonable time...