Provident Sav. Life Assur. Soc. v. Exchange Bank of Macon

• Decision Date: 17 October 1903
• Docket Number: 1,254.
• Citation: 126 F. 360
• Parties: PROVIDENT SAV. LIFE ASSUR. SOC. v. EXCHANGE BANK OF MACON.
• Court: U.S. Court of Appeals — Fifth Circuit

126 F. 360

PROVIDENT SAV. LIFE ASSUR. SOC. v. EXCHANGE BANK OF MACON.

No. 1,254.

United States Court of Appeals, Fifth Circuit.

October 17, 1903

James H. Gilbert, for plaintiff in error.

A. L Miller, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

In the construction of the policy and application involved in this case we concur with the learned judge presiding in the Circuit Court. In his charge to the jury, Judge Speer said:

'These grounds of defense are, first, that the policy was obtained by false and fraudulent stipulations and misrepresentations made to the assurance company by Bivins, as follows: That in the application made to the defendant by Bivins, dated April 3, 1894, in reply to the question therein, 'Have you ever used spirits, wine, or malt liquors?' he said and answered, 'Moderately.' In reply to the question whether he had ever used spirits, wine, or malt liquors to excess, he said and replied positively and without qualification that he never had. Relying upon the faith of this, it is alleged that the company issued the policy, and it now says that these statements were not true, but were made with the purpose and intent on the part of said Bivins to conceal the truth, and fraudulently to mislead and deceive it, and induce it to accept a risk which the defendant in no wise would have done, the answer states, 'had the truth in respect to his use of wines spirits, or malt liquors been made known by Bivins to the defendant. * * * '

'Now let us give more careful attention to the language of these questions. ' Have you ever used spirits,' etc 'to excess?' What is the meaning of the word 'used' in this connection? That, in my judgment, is the crucial question in the construction of this application. The word used adopted for the purpose of this question does not imply an occasional indulgence in strong drink. It means to be accustomed, to make a practice of. When you speak of a man as using diligence in business, you mean that he is habitually industrious and attentive to business. In his essay on Ranke's History of the Popes, that master of our language, Macaulay, says: 'The Catholic Church neither submits to enthusiasm nor prescribes it, but uses it.' It is a word which is synonymous with-- that is, meaning the same with-- 'custom' or 'habit,' or, in this case, 'habitual indulgence.' Habit in this connection imports a disposition or condition of the body or mind acquired by custom, or a frequent repetition of the same act or, to express it otherwise, the customary conduct to pursue which one has acquired a tendency from the frequent repetition of the same act. When a man states he uses tobacco, he means that he smokes and chews it as a habit. If the assurance company had desired to know whether the insured was a total abstainer, it doubtless would have chosen language in the preparation of its questions which must have evoked the fact; such, for instance, as, 'Are you a total abstainer?' ' Do you drink?' ' Do you drink to excess?' or, 'Have you ever been drunk?' Now, it is perhaps true that few insurance companies could profitably conduct their business if they restricted their policies to those who never indulged in strong drink, namely, total abstainers. It is essential to the earning capacity of the company that it should induce persons to insure, and it is also essential to the same thing that it should only take safe risks. With this view, as I...