Appeal
from Superior Court, Granville County; Justice, Judge.
Action
by Addie D. Taylor against the Security Life & Annuity
Company. Judgment for plaintiff. Defendant appeals. Affirmed.
There
being no substantial contradictory statement as to the matter
of drinking by insured prior to his application for
insurance, but the real question being whether, conceding
this, he was then intemperate, the testimony of witness
based on knowledge and observation as to whether he was
temperate, does not call for an instruction on the weight to
be given positive and negative testimony.
This is
an action for the recovery of the amount of a policy of
insurance on the life of Frank L. Taylor issued by defendant
company payable to plaintiff. Defendant admitted that the
policy issued, that plaintiff was the beneficiary named
therein, the death of insured, the insurable interest of
plaintiff in his life, and that proof of death had been duly
filed. It alleged, by way of defense, that the insured had
made false answers in his application to the following
questions: "(14) Have you ever been intemperate in the
use of malt or spirituous liquors? No. If so, when and how
often? Never. (15) Do you use malt or spirituous liquors now?
No. If so, definitely, how much and how often? X. (16) Do you
now, or have you ever, used habitually opium, chloral
cocaine, or any other drug? No."
The
following issues were submitted to the jury: "(1) Did
the insured, Frank L. Taylor, represent in the contact of
insurance sued on that he had never been intemperate in the
use of malt or spirituous liquors? Ans. Yes. (2) If so, was
such representation false? Ans. No. (3) If so, was such
representation material? Ans. Yes. (4) What sum, if any, is
the plaintiff entitled to recover of the defendant? Ans
$5,056.12, with interest thereon from October 15, 1906."
Plaintiff
consented that the jury should answer the first and third
issues in the affirmative. Defendant took the burden of
establishing the second issue, and introduced the evidence of
persons who were acquainted with insured for several years
prior to the date of the application-knew his habits, etc.
They testified in regard to his habit in the use of
spirituous liquor, based upon their own knowledge. Several of
defendant's witnesses were asked by plaintiff, on
cross-examination: "How frequently did you see Frank
Taylor while he lived in Wilson? Ans. Practically every day.
Q. From your knowledge of him and your observation of him
from day to day, would you say that he was a man of
intemperate habits in the use of alcoholic liquors?
(Defendant objected and excepted to admission of question.)
Ans. No. (Defendant excepted.)" It was in evidence that
insured lived in Wilson from 1901 to 1904. Plaintiff
introduced a number of witnesses, among them Col. W. H
Osborne, who testified that he lived in Greensboro, and had
lived there since 1892; that he was born and reared in
Oxford; that he knew the insured in Greensboro, when, in
1904, he clerked in
the drug store of J. D. Helms; that insured lived in
Greensboro several months; and that witness saw him nearly
every day. Witness was asked by plaintiff's counsel:
"If from his knowledge of insured and his observation of
him and his habits he knew whether insured was temperate or
intemperate in the use of malt or spirituous liquors?"
Witness answered that he thought he did, and that the insured
was temperate. On cross-examination, witness testified that
at the time referred to he was mayor of Greensboro; that he
was at Helms' drug store very often at night, but rarely,
if ever, late at night; that he made the drug store his
headquarters; and that insured was on duty when he was there.
J. D. Helms testified that he lived in Greensboro, conducted
a drug store there; that insured was prescription clerk in
his store from June 20 to October 20, 1904, and that he
(witness) had personal supervision of his store. Witness was
asked by plaintiff's counsel: "From your knowledge
of insured and your observation of him and his habits, would
you say that he was intemperate in the use of spirituous or
malt liquors?" Witness replied: "The insured was
temperate." On cross-examination, witness said that if
insured ever drank he had not heard of it. T. M. Washington
testified: That he left Granville county in the year 1891 and
went to Wilson county, where he had lived ever since; that he
knew the insured intimately while he lived in Wilson; that
witness saw insured every day, and sometimes several times a
day when witness was in town. Witness was then asked by
plaintiff's counsel: "From your intimate
acquaintance with insured, your opportunities for observing
him and his habits, was he temperate or intemperate in the
use of malt or spirituous liquors?" Answer: "I
considered him temperate. I think I know."
To each
and every one of the questions and answers defendant duly
excepted. Defendant's testimony tended to show that
insured was under the influence of liquor several times in
Wilson, Oxford, Morehead City, Greensboro, and once in
Richmond. Defendant in apt time requested his honor to
instruct the jury as set out in the opinion, and to his
refusal duly excepted. His honor, in response to
defendant's prayer, among other things, instructed the
jury as follows: "The court charges the jury that the
word 'intemperate' as used in this application is
defined by the law to mean as follows: 'Intemperance is
the use of anything beyond moderation, and it does not
necessarily imply drunkenness. An occasional use of alcoholic
liquors is not to be deemed intemperance, but there must be
indulgence to such an extent as would be considered an
excess.' The court charges you that an insurance company
in North Carolina has a right to prescribe as a condition
precedent to the issuing of a life policy that the applicant
shall state in writing whether or not he has ever been
intemperate in the use of spirituous or malt liquor, and that
the answer to same is a material fact in said application.
Intemperance does not necessarily mean habitual drunkenness.
Habitual drunkenness is, of course, intemperance, but there
may be intemperance in the absence of habitual drunkenness.
Therefore, if the jury should find from the evidence that
during the several years preceding the time when the insured
Frank L. Taylor signed the application for the policy sued on
in this case, he was often under the influence of some
intoxicating liquor, and was from time to time what is
commonly called drunk, and you should further find that he
represented, when applying for said policy, that he had never
been intemperate in the use of malt or spirituous liquors,
then, in that event, the court charges you, gentlemen, that
his answer to the question, 'Have you ever been
intemperate in the use of malt or spirituous liquors?'
was false, and you should answer the second issue,
'Yes.' If the jury should find from the evidence that
the insured's representation that he had never been
intemperate in the use of malt or spirituous liquors was
false, and that said representation was material, you would
then have a plain duty to perform; and the court charges you
that this duty ought not to be influenced and cannot be
changed by any consideration of the manner in which the
interests of the parties to this cause may be affected. While
the policy in question, under all the circumstances of this
case, might not be avoided by proof of an occasional use of
malt or spirituous liquors, yet such occasional use does not
mean occasional sprees of drunkenness; and if the jury should
find from the evidence that, prior to the date of the
application in question, the insured occasionally and from
time to time, with intervals of perfect sobriety of greater
or less duration between, got on what are called sprees, and
became intoxicated, the court charges you that such sprees,
although occasional, and although occurring with varying
intervals of sobriety, would constitute an intemperate use of
malt or spirituous liquors, and, if you should so find, it
would be your duty to answer the second issue, 'Yes,'
and the court further charges you, if you so find, to answer
the second issue, 'Yes."'
In
addition to the special prayers given by request of defendant
his honor charged the jury as follows upon the third issue:
"On the second issue, the question for you to ascertain
is whether the insured, Frank L. Taylor, was ever intemperate
in the use of malt or spirituous liquors. Although you should
find that the insured used malt or spirituous liquors in
moderation, or that he even occasionally felt their effects,
not to intoxication or immoderation, this would not be
sufficient to enable you to answer the third issue,
'Yes.' In order to enable you to answer this third
issue, 'Yes,' it is necessary for the defendant to
satisfy you by the
greater weight of the evidence that the insured, Frank L.
Taylor, had prior to the application been intemperate in the
use of malt or spirituous liquors. Intemperate means
excessive, immoderate. So the question in another form is
this: 'Had the insured ever used malt or spirituous
liquors intemperately, excessively, immoderately?' If you
find from the testimony, by the greater weight of the
evidence, that he had so used it prior to the date of his
application, you will answer the second issue, 'Yes.'
If the defendant has failed to so satisfy you, you will
answer the second issue, 'No.' You will consider all
the testimony offered by the defendant and by the plaintiff
bearing on the question as to whether the insured has been
intemperate in the use of malt or spirituous liquors."
The
exceptions to his honor's refusal to give special
instructions...
