Taylor v. Security Life & Annuity Co.

• Decision Date: 06 November 1907
• Citation: Taylor v. Security Life & Annuity Co., 145 N.C. 383, 59 S.E. 139 (N.C. 1907)
• Parties: TAYLOR v. SECURITY LIFE & ANNUITY CO.
• Court: North Carolina Supreme Court

59 S.E. 139

145 N.C. 383

TAYLOR v. SECURITY LIFE & ANNUITY CO.

Supreme Court of North Carolina

November 6, 1907

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...