Rainger v. Boston Mut. Life Ass'n

• Decision Date: 26 October 1896
• Citation: 44 N.E. 1088,167 Mass. 109
• Parties: RAINGER v. BOSTON MUT. LIFE ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 109

44 N.E. 1088

RAINGER v. BOSTON MUT. LIFE ASS'N.

Supreme Judicial Court of Massachusetts, Hampden.

October 26, 1896

COUNSEL

H.K. Hawes, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

MORTON J.

The testimony tended overwhelmingly to show that, at the time when the application was made and the policy was issued, the insured was addicted to the excessive use of intoxicating liquors, and that, therefore, the answer, "Glass of beer once in a day or two," to the question in the application, "Do you use ardent spirits, wine, or malt liquors, and, if so, to what extent,--average quantity each day?" was false. It is true that the examining physician testified that he "discovered no indications of his drinking, only what was noted in the report, occasionally a glass of beer"; and that the plaintiff, the widow testified on direct examination that "he used to drink intoxicating liquor when he felt like it," and that he "got intoxicated once in a while, not very often," and, on cross-examination, that "he used to drink when he felt like it. He did not drink every day, not to my knowledge. For the last year and a half of his life, he was not an habitual user of liquor; not all the time. He used it when he felt like it." But it is plain that the examining physician relied, not on his own observation, but on what the insured told him; and the testimony of the widow when considered in connection with that of the other witnesses, amounts to little, if anything, more than a scintilla of evidence. In such a posture of the case, it would have been the duty of the court, if a verdict had been rendered for the plaintiff, to have set it aside as often as rendered, and consequently to withdraw the case from the jury. Hillyer v. Dickinson, 154 Mass. 502, 28 N.E 905; Denny v. Williams, 5 Allen, 1.

The plaintiff does not contend that the insured was not, according to the evidence, in the habit of using intoxicating liquors to excess, but seeks to avoid the effect of the evidence on the ground that it was not shown that he actually or knowingly intended to deceive by the statement which he made in regard to his use of intoxicating liquor, or that the defendant's risk was thereby increased. St.1895, c. 271. But we can have no doubt that the habits of the insured in regard to the use of intoxicating liquor increased the risk, and that, therefore, the answer must be held, as matter of law, to have avoided the policy. It is immaterial whether the insured did or did not actually or knowingly...