National Life c. Ins. Co. v. Barnes

Full title: NATIONAL LIFE ACCIDENT INSURANCE COMPANY v. BARNES

Court: Court of Appeals of Georgia

Date published: Feb 22, 1940

7 S.E.2d 299 (Ga. Ct. App. 1940)

7 S.E.2d 299

Opinion

27838.

DECIDED FEBRUARY 22, 1940.

Complaint on life policy; from Fulton civil court — Judge McClelland. June 8, 1939.

William F. Buchanan, Ben Anderson, for plaintiff in error.

Hooper Hooper, contra.

1. In the written application for life insurance which was attached to and made a part of the policy was the following question: "To what extent do you now, or have you in the past, used intoxicants, morphine, cocaine, or other habit-forming drugs?" The insured gave the following answer: "Occasional drink of whisky." The foregoing question is generally held to have reference to the "habitual" or "customary" use of such drugs or drinks, and does not refer to an "occasional" or "exceptional" use of such drugs or drinks.

2. The jury in the instant case were authorized to find that the deceased drank at separate, infrequent intervals, and on each of these occasions he drank to excess, but that he was not a habitual drinker. They were further authorized to find that over a period of ten years immediately before the issuance of the policy there were five or six such occasions (the last of which was approximately nine months before the issuance of the policy) when he drank to excess, but these occasions were so infrequent and irregular as to make him an "occasional" drinker in contradistinction to a "habitual" or "customary" drinker. There was no evidence that he ever drank between these occasions when he drank to excess, which occasions might be called "sprees."

3. The evidence did not demand a finding that the answer to the question in the application was untrue.

4. The evidence authorized the verdict and no reversible error appears in the two special grounds of the motion for new trial.

DECIDED FEBRUARY 22, 1940.

On October 14, 1936, Leon L. Barnes applied to the National Life Accident Insurance Company for a policy of life insurance in the sum of $1000. In his written application which was attached to and made a part of the policy he made the following answer to the following question: "To what extent do you now, or have you in the past, used intoxicants, morphine, cocaine, or other habit-forming drugs?" A. "Occasional drink of whisky." The policy was issued on October 28, 1936, naming Mrs. Clara E. Barnes as beneficiary. Leon L. Barnes died on April 8, 1938, of coronary thrombosis. The company refused to pay the claim and contended that it was not liable because the answer to the question with reference to use of intoxicants and drugs was untrue.

The defendant company introduced a certified copy of the record of the Nashville, Tennessee, police court showing that the defendant had forfeited bond when he was charged with drunkenness on April 24, 1934. There was another such record introduced for a similar charge on March 7, 1936. M. L. Hughes, a witness for the defendant, who was sales manager of the Colonial Milling Company, and who was the deceased's boss, testified: "I knew Mr. Leon L. Barnes in his lifetime. I knew him very well, only in a business way. . . I didn't associate with him socially. He and I lived near each other, back gates almost met, about two houses differences. . . His employment did terminate about March 1, 1935. . . My recollection is he started about 1926, I am not sure about that date. . . As to whether Mr. Barnes drank whisky, I never have seen him intoxicated but one time since I knew him. That was at a little Christmas-eve party given by the Westhen Bag Company here, and of course it was natural for a fellow to take a little more than usual on that occasion. On that occasion I saw him intoxicated. I remember that has been fifteen or sixteen years ago. . . To the best of my knowledge and remembrance, on two occasions [in the last four or five years] we had to let him go [about whisky drinking], but the last time he left on his own hook. . . He was a likeable man and a good salesman, a good combination. . . He always came home if he drank; he never would stay in his territory; he would come home and go to bed, take medicine, and in two or three days he was just as fresh as a lily. . . I knew he went a long stretch there that he never did drink, maybe two or three years to my knowledge; I don't know he ever touched it. As far as I know, he didn't keep any whisky in his home. As to whether he would sometimes decline social drinks when offered to him, I have seen a fellow offer him a drink over there, some salesman, I don't know whether he was kidding with him or not; no, he wouldn't take any. . . I took him back because he was one of my best producers. We tried four or five in this territory and never had any salesman like him. Mr. Barnes was a hard worker. . . He was a man that was rather tense, or intense in his work, put his heart in it. He was very sincere about his work. As to whether I am acquainted with his general reputation as far as truthfulness, honesty, and integrity is concerned, his record as far as his relations in our business was absolutely satisfactory. . . The only weakness I knew, he would get on these sprees occasionally; very reliable all right as far as honesty is concerned. And truthfulness. . . I know one time he worked regularly two or three years, maybe four; he would work right on. During that time I didn't even know of his getting on any sprees; I don't have any knowledge if he did."

Dr. J. N. Brawner, a witness for the defendant, testified in part as follows: "I have been practicing thirty-nine years. I specialize in a particular field: nervous and mental disorders, drug and alcoholic addicts. I treated, as a physician, a man named Leon L. Barnes at Brawner's Sanitarium. He first became an inmate of Brawner's Sanitarium November 7, 1936. As to the personal history he gave me as to his use of alcohol, he said he went on periodical sprees. . . He was treated here at the hospital from November 7, 1936, to November 22, 1936, although he was away from the hospital on the 14th and returned on the 15th. He made a visit into Atlanta from the hospital." On cross-examination he testified: "In my opinion and from my experience, as to which type of drinking is the more harmful, a steady moderate drinker or a man who drinks heavily on sprees at widely scattered intervals, it is more harmful to drink steadily. That is the reason a man who does drink heavily and gets on sprees at wide intervals apart may live to a rather ripe old age. An occasional spree of heavy drinking at wide intervals apart does not much affect a man's health."

R. S. Webb, a barber, who knew the deceased from shortly before Christmas, 1936, up to the time of his death, April, 1938, testified: "During that period of time I was thrown with him only in a social way; I visited him several times at his home. He did not visit my home; at that time I was boarding. During that period of time I would say I was at his home at least a half-dozen times, if not more. In my visits to his home I never saw any whisky in the house. I never saw him take a drink. He never offered me a drink. I never saw him offer any one a drink." On cross-examination he testified: "I did not know that he drank. . . I did not know what his habits were about drinking, nor about sprees. I had no business connection with him. . . Whether he drank or not, I don't know; or whether he went on sprees or not, I don't know."

R. S. Brown, a witness for the plaintiff, testified that he knew Leon L. Barnes since about 1934, and was thrown with him quite a great deal from about February 1, 1936, until just prior to the time he went out to Brawner's Sanitarium. During that time witness never saw Barnes take a drink of liquor, and was with him every day for six weeks and slept with him at night. Further: "Between the time he married Mrs. Barnes in 1936 until just prior to the time he went out to Brawner's, I was thrown with him very much; I was on the road with him, traveling for the same company most of the year 1936. During that time, I never saw Mr. Barnes take a drink of liquor."

Mr. C. B. Grimes, a resident of Nashville, Tennessee, lived in one side of a duplex apartment in which Barnes occupied the other side from 1924 to 1930. He testified that he saw the deceased at frequent intervals while he continued traveling in Nashville and after he went to Atlanta in 1936, and saw him on two occasions in 1936 and in 1937 in Nashville. Witness never saw Barnes take any whisky and never knew him to be intoxicated. P. B. Rowland, who knew the deceased from October, 1935, until September or October, 1936, and saw him as often as three or four times a week, testified that he never saw deceased under the influence of alcoholic drink and that deceased never kept whisky in his apartment.

MacINTYRE, J.

In the application for life insurance, which was attached to and made a part of the policy, was the following question: "To what extent do you now, or have you in the past, used intoxicants, morphine, cocaine, or other habit-forming drugs?" The insured (deceased) gave the following answer: "Occasional drink of whisky." The defendant company contends that it is not liable on the policy because the answer of the insured to the question in the application was untrue.

In Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132 ( 135 S.W. 836), the court held that questions in an application for a life policy: "To what extent do you use . . alcoholic stimulants? Wine or malt liquors to any excess? If so, when and for how long?" refer to the customary or habitual use, and not to an occasional use thereof or an exceptional use to excess. "The habit of a person contemplates a course of conduct which is customary, and shows that he has acquired a tendency to pursue that course of conduct from frequent repetitions of the same act. It does not contemplate occasional or exceptional acts." (Italics ours.) The Court of Appeals of Tennessee, in Life Casualty Ins. Co. v. Robertson, 6 Tenn. App. 43, 66, said: "With reference to the question as to whether the insured had at any time used any alcoholic drinks to excess, it is generally held that questions as to whether an applicant for insurance has used or uses intoxicating liquor, and, if so, the extent and average quantity, do not refer to an occasional or exceptional use of such drinks, or an exceptional use to excess, but to the habitual or customary use." (Italics ours.) It is generally held, as stated in 26 A.L.R. 1284, "that questions as to whether an applicant for insurance has used or uses intoxicating liquor, and, if so, the extent and average quantity, do not refer to an occasional or exceptional use of such drinks [or an occasional use to excess], but to the habitual or customary use." The testimony of Dr. Brawner on cross-examination: "In my opinion and from my experience, as to which type of drinking is the more harmful, a steady moderate drinker or a man who drinks heavily on sprees at widely scattered intervals, it is more harmful to drink steadily. That is the reason a man who drinks heavily and gets on sprees at wide intervals apart may live to a rather ripe old age. An occasional spree of heavy drinking at wide intervals apart does not much affect a man's health," would tend to support the appropriateness of such a construction of such a question.

If we construe the question in the instant case as such questions are generally construed in such applications for insurance, it would in effect be: "Do you habitually or customarily use the habit-forming drugs or drinks named therein?" Under such a construction, the insured would neither have answered that he did nor that he did not habitually use such habit-forming drinks or drugs. Brennan v. National Life c. Ins. Co., 14 La.App. 598 ( 122 So. 147). However, the jury were authorized to find that the insured's (deceased's) answer to the question directed the mind of the insurance company to the fact that he occasionally drank, not necessarily that he drank moderately on these occasions, but that the word "occasional" was used in contradistinction to the word "habitual," and that the word "occasional" was not used in contradistinction to the word "excessive" when used in connection with drinking on widely separated intervals. In short, they were authorized to find that the word "occasional" was used as an antonym for the word "habitual," and was not used as an antonym for the word "excessive," nor as a synonym for the word "moderate." The jury was further authorized to find that the deceased drank at widely separated intervals and on each of these occasions he drank to excess, but that he was not a habitual drinker. They were authorized to find that over a period of ten years immediately before the issuance of the policy there were five or six such occasions (the last of which was approximately nine months before the issuance of the policy) when he drank to excess, but that these occasions were so infrequent and irregular as to make him an "occasional" drinker in contradistinction to a "habitual" or "customary" drinker. There was no evidence that he ever drank between these occasions when he drank to excess, which occasions might be called "sprees." The evidence did not demand a finding that the defendant was not liable because the answer to the question in the application was untrue. AEtna Life Insurance Co. v. McCullagh, 185 Ky. 664 ( 215 S.W. 821).

The evidence authorized the verdict in favor of the plaintiff and grounds 4 and 5 of the motion for new trial do not disclose reversible error.

Judgment affirmed. Broyles, C. J., and Guerry, J., concur.