Grand Lodge Ancient Order of United Workmen v. Belcham

Opinion of the Court, the

Hon. George W. Wall, Judge.

This suit was brought by appellee against appellants to recover $2,000 and interest upon a beneficiary certificate insuring the life of her husband, Thomas W. Belcham.

The plaintiff recovered and the defendants bring the record to this court by appeal.

Two questions of fact were raised by the pleadings and contested upon the trial.

1st. Did said Thomas W. Belcham procure the certificate by a false and material statement in his written application for membership in reference to his use of intoxicating liquor %

2d. Was he insane at the time he was expelled from the lodge upon the charge of drunkenness %

These questions were solved in favor of the appellee.

It is unnecessary to set out the details or even the substance of the evidence upon the issues thus presented.

We are of opinion there was enough in the proofs to sustain the conclusion reached and that there is no sufficient reason for interfering with the judgment upon the errors assigned as to this branch of the case.

The only question of law that we care to notice arises upon the construction given by the court to the questions and answers attached to the application referring to applicant’s use of intoxicating liquor.

The application contained the following language: “I certify that the answers made by me to the questions propounded by the medical examiner of this lodge which are attached to this application and form a part thereof, are true.”

What questions were propounded by the medical examiner does not appear, but his report which is attached to the application contains among others the following questions and answers:

16. To what extent does the person use alcoholic stim-. ulants? A. Hone, (b) To what extent does the person use tobacco ? (b) Moderate, (c) To what extent does the person use opium ? (c) Hone, (d) Are there any indications that would lead you to suppose that the applicant leads or has led other than a sober and temperate life ? (d) Hone.

23. Do you consider the applicant’s life to be safely insurable and do you recommend that a policy be granted ? A. Yes.

24. Are the above answers made from personal examination and from questions propounded to the applicant ? A. Yes.

The answers thus made by the medical examiner may be regarded as made by the applicant with this qualification, that he had the right to rely to some extent upon the construction given by the examiner to the various questions, and the answers which the examiner made from the information he obtained by his questions to the applican t. Among the questions and answers contained in this report are a number relating to the physical condition of the party, e. g., the condition of the pulse, the action of the heart, breathing, expectoration, the indications of disease of the nervous system, of the lungs, etc., such as are usual in examinations for life insurance. As to all these the examiner may be trusted to form his professional opinion from what he can discover by examination and by such questions as he may deem proper. If the applicant states the facts according to his best knowledge and recollection he will not be prejudiced by the erroneous conclusion reached by the examiner.

Taking the several questions relating to liquor, tobacco and opium embraced under the general interrogatory No. 16 all together, it must be apparent that a liberal and reasonable construction should be applied to them and to the answers thereto.

It can not be supposed it was understood that the applicant had never taken liquor or opium and that he was ignorant of the taste of either. Such a construction literally applied would exclude the great mass of men and would reduce the ranks of any insurance organization to an unprofitable minimum.

The question to what extent one uses liquor is rather loose and indefinite. We think the company, propounding such a question, should not be permitted to give it a close and technical meaning, and that in view of the sub-questions the fair and reasonable construction is to imply something more than an occasional or incidental use. There must be to some extent a habit, or a custom in that regard. So it was held in Van Valkenburg v. A. P. L. Ins. Co., 70 N. Y. 605. Hardly any ordinary person reading those questions and answers would suppose that an occasional, not a customary use was intended either by the questions or the answers.

Counsel for appellant argue that there is great significance in the answer none in regard to liquor, and moderate in regard to tobacco, and that an implication highly unfavorable to the applicant is to be drawn therefrom.

We think not; ordinarily, the moderate use of tobacco implies a fixed habit. As a rule, the system does not readily tolerate it, and it is only after repeated trials that one can moderately use it. Hence, a habit more or less fixed is implied from the statement of moderate use. Hot so In regard to liquor. The taste of it is usually not repugnant, and one may occasionally indulge in it without having acquired a habit of doing so.

The Circuit Court, in its rulings upon the admission of evidence and in giving and refusing instructions, evidently entertained the views above expressed as to the true construction of the application in this respect.

We are of opinion that no substantial error has intervened and that, therefore, the judgment should be affirmed.