p. 468At the end of the testimony, the defendant’s counsel claimed that the plaintiff had, by the policy, warranted the answer in the application to be true ; that by uncontradicted evidence, the answer was untrue ; and moved for a verdict for defendant. The motion was denied, and exception taken.
Further facts appear in the opinion.
Fullerton, Knox & Crosby, attorneys, and William Fullerton, of counsel, for appellant, among other things, urged:
I. “If there is a stipulation that the habits of an applicant are sober and temperate, it is sufficient to avoid the policy for the defendants to show that his habits were intemperate, and it is no answer to this plea to prove the intemperance not to have been such as to have injured the health of the insured, or to shorten his life” (Southcombe
v. Merriman, 1
Cov. & Marsh. 286; Jeffries
v. Franklin Ins. Co.,
22 Wall. 47 ; Mut. Benefit L. Ins. Co.
v. Holterhoff, 2
Cin. 379 ;
Bunyan, 45). To prove the representations untrue as to his habits at the time of taking out the policy, it is only necessary to offer the petition of the plaintiff herself, in an action against her husband for a limited divorce, made under oath, and which contains the following allegations: “That ever Since the said marriage between the plaintiff and defendant, the said defendant has been addicted to the excessive use of intoxicating liquors, causing him to be very frequently in a drunken and irresponsible condition of mind. That such drunkenness has very much increased in frequency within the last two years.” This petition was sworn to on April 30, 1877. The plaintiff was married to her husband in 1865, and thó policy issued on September 10, 1874, nearly ten years thereafter. Although, in answer to the question “ Are your habits of life correct and temperate?” he answered “ Yes; drink at times,” yet the latter phrase does not, in any degree, qualify the answer
p. 469“Yes.” The meaning of the whole answer is that while he drinks at times, “ Yet his habits of life are correct and temperate.” By the phrase “ drink at times,” he did not mean to convey to the company that he indulged in the use of intoxicating liquors to such an extent as to impair his health.II. The assured also alleged and promised that he did not then, and that he would not in the future, practice any pernicious habit that obviously tended to shorten life. This was a promissory warranty that was, as appears from the petition of the wife and from other testimony, broken, whereby the policy was made void (Bliss Life Ins. § 44; also p. 61; Angeli on Ins. § 150 ; Arnold on Ins. § 192). The statement of an intention to do a certain act in answer" to a question upon an application for a policy of fire insurance, is equivalent to an agreement to perform such act upon the happening of the event upon which it was contingent (Bilborough v. Metropolis Ins. Co., 5 Duer, 587 ; Fowler v. Ætna Ins. Co., 7 Wend. 270 ; Dunning v. Chenango Co. Mut. Ins. Co., 2 Den. 75 ; Stout v. Fire Ins. Co. of N. H., 12 Iowa, 371 ). The insurance company had an object in incorporating the provision in the policy of insurance, that the insured should not practice any pernicious habit which obviously tends to shorten life. That clause was meant to perform some office. It formed a part of the declaration of the applicant, and which declaration it was mutually agreed should form the basis of the contract of insurance. If, then, the declaration that the assured would not practice any such habit, was the basis of the contract of insurance, how can the contract stand if the basis is destroyed ?C. E. & D. B. Ogden, attorneys, and John E. Parsons, of counsel, among other things, urged:
I. Answers to questions in the application are not to
p. 470be extended beyond their fair meaning. The answer to the question, “Are your habits of life correct and temperate ?” was not unqualified. He did not answer simply Yes. The words “ drink at times ” qualified yes, or were unmeaning. ' And of that qualifying effect, the jury’were the judges (Edington v. Ætna Life Ins. Co., 13 Hun, 543 ; Swift v. Mass. Mutual, Life Ins. Co., 2 N. Y. Sup'm. Ct. 302 ; Higgins v. Phenix Mutual Life Ins. Co., Ct. App., May 21, 1875, 7 Ins. L. T. 788 ; Baker v. Home Life, Ins. Co., 64 N. Y. 648 ; Edington v. Mutual Life Ins. Co., 67 Id. 185 ; Pitch v. Am. Pop. Life Ins. Co., 58 Id. 557; Dilliber v. Home Life Ins. Co., 69 Id,. 656). “If a question is not answered, it is not a warranty that there is nothing to answer (Liberty Hall v. Ins. Co., 7 Gray, 261 ). Warranties in policies of insurance are strictly construed. They will not be extended to include anything not necessarily implied in their terms (Loud v. Insurance Co., 2 Gray, 221 ; Campbell v. Id., 98 Mass. 381 ; Hide v. Bruce, 3 Doug. 213 ; Fowkes v. M. & L. Life Ass. Assn., 3 Best & Smith, Q. B. 917).II. It was a question for the jury whether Leon Furniss’s habits tended obviously to the shortening of life, and there was an abundance of evidence on the part of the plaintiff to be submitted to the jury. The question of intemperance is eminently one for the jury (Rawlins v. Desborough, 2 Moody & Rob. 328 ; McGinley v. U. S. Life Ins. Co., Ct. App. [June, 1879], 8 Ins. Law, 3,538 ; Fox v. Ins. Co., 4 Dig. 458).On the trial, it appeared that the plaintiff intermarried, in 1865, with Leon Furniss, whose life was insured by the policy in action. The plaintiff, on April 30, 1877, swore that a certain petition made by her in an action against her husband, was true of her own knowledge, except such matters as were therein stated on information and
p. 471belief, and that as to such matters, she believed the petition to be true. That petition contained the following assertions: “That ever since the said marriage of the plaintiff and defendant, the said defendant has been addicted to the excessive use of intoxicating liquors, causing him to be very frequently in a drunken and irresponsible condition of mind.” These assertions are at variance with the declarations made by the application of the plaintiff for the insurance ; for it is clear that the answer made by the husband to the questions in that regard contained in the application, means that he drank at times, in such quantity as still to leave him with correct and temperate habits of life. The application was made September 9, 1874.
The petition of the plaintiff, that has been referred to, was evidence in the case as to the habits of life of Furniss, at the time of the application. The declarations of the petition were an admission, which, when compared with the answers that have been given, clearly shows that the latter did not give the fact as to his habits. The plaintiff testified that the language of the petition was the language of the lawyer who drew it, but she did not assert that the facts were not truly described by that language.
This admission, nevertheless, the plaintiff was at liberty to explain or to show to have been incorrect by evidence sufficient for that purpose. There was no explanation of the petition. She did not testify what facts she communicated to her lawyer, nor that the petition did not allege the facts as she had said they were, nor that she did not understand the meaning of the language. She did not testify to any facts that would tend to show that the application was true rather than the petition, or that the petition was incorrect. I have looked carefully at the testimony of the other witnesses, to find if their testimony tended to show that the petition'was incorrect. A very small
p. 473that the “above application and this declaration” shall form the basis of the contract, and that if untrue answers have been made, the said policy shall become null and void.
For these reasons, I am of opinion that tire motion to direct a verdict for defendant should have been granted.
I am of opinion, that the disposition of the case in other respects was correct.
Judgment reversed, and new trial ordered, with costs of the appeal to the appellant to abide the event.
Speir and Russell, JJ., concurred.