U. B. Mutual Aid Soc. v. O'Hara

Opinion,

Mr. Justice Paxson:

These cases were tried together in the court below, were argued together here, and may be disposed of in one opinion. The questions are alike in each.

The actions were debt on policies of insurance. The defence was that the assured had made false answers to certain interrogatories contained in the application. In the policy or certificate of membership, it was expressly stipulated that if any answers or representations made by O’Hara, the assured, in his application, should be found in any respect untrue, then the certificate should be null and void. It was alleged by the defendant company that in his application O’Hara stated that his habits of life were temperate, and that he had never been afflicted with asthma, or dropsy, or any other disease, and that he had not had any medical attendance during the year prior to his application, and that he had no family physician. The company alleged that these representations were untrue, and took upon itself the burden of establishing their untruth.

In the third and tenth assignments complaint is made that the court below excluded certain evidence offered to prove that the assured was a man of intemperate habits. Referring'to the tenth assignment, the witness upon the stand was asked the question: Did you ever see Mr. O’Hara under the influence of liquor ? This was objected to, and was ruled out by the court for the reason that “ the habit of life means something more than one drink.” The remark of the learned judge was entirely accurate, but it was not a sufficient reason for excluding tlie evidence. It was a link in the chain which might or might not have been followed up by sufficient other evidence to establish a habit of intemperance. The defendant was entitled to make a beginning in its proofs, and when its evidence was all in it would be for the jury, under proper instructions from the court, to say whether it was sufficient to establish a habit. The further question was then asked of the witness whether he ever saw O’Hara drink more than once. This was objected to by plaintiffs’ counsel for the reason that the question should be put in the language of the application, and the objection was sustained by the court. If the witness had stated, in the language of the application, that O’Hara was a man of intemperate habits, it would have been at best a mere opinion of no possible value unless the jury had the facts before them of which it was predicated. Men may differ widely as to what constitutes intemperate habits. Some persons of extreme views may regard the slightest indulgence as intemperance ; others, perhaps, would regard a man as sober as long as he can walk. The provision in the policy has no reference to extreme views on either side. It seeks to ascertain whether the habits of the assured are so far intemperate as to increase the risk. Hence if it be shown as was attempted (see third assignment) that the assured was in the habit of getting intoxicated for three or four days after each pay day; that upon such occasions “ he came home and behaved uproariously, just as an uproarious drunken man does, and abused his family,” it is certainly a link in the chain of evidence tending to show habits of intemperance. When it is alleged that a man is drunk his behavior becomes material, even to the abuse of his family, as it is his conduct from which the jury must, to a considerable extent, draw their conclusions in regard to his condition. We think it was error to exclude the evidence referred to in these assignments.

Another branch of the defence was that the assured was afflicted with asthma. It was not error to refuse to allow the company to prove this by an inexpert witness. (See fifth assignment.) But when the same witness was asked whether O’Hara was afflicted with shortness of breath, the question should have been allowed. It referred to a matter of fact. The witness had worked with O’Hara; he could tell whether he had ever observed his shortness of breath without any medical knowledge. The question did not refer to the assured’s disease (asthma), but to one of its symptoms which is visible to the inexpert eye.

We regard the answer to the defendant’s sixth point as misleading. The point was: “ If the jury find that Bernard O’Hara had had any medical attendance within the year prior to his making said application, then the plaintiff cannot recover.” The learned judge affirmed this point as qualified in his general charge. An examination of the general charge does not furnish an adequate answer to the point. The eighth interrogatory in the application is : “ Have you had any medical attendance within the last year prior to this date ? If so, for what disease ? Give name and address of the doctor in full.” The object of this interrogatory is manifest. If the assured had no medical attendance within the time prescribed, and so answers, that is the end of it. But1 if he had such attendance, then the company is entitled to know for what cause he had medical advice or aid, and the name and address of the doctor, in order that they may ascertain the particulars from him. And if the assured falsely answer that he had no medical attendance, he is not entitled to recover. It follows that the point in question should have been affirmed.

The remaining assignments we do not regard as important.

Judgment reversed, and a venire facias de novo awarded.