Union Cent. Life Ins. v. Hughes' Admr.

Opinion of the court by JUDGE HOBSON -Affirming. Appellant on September 5, 1890, issued to John 8. Hughes a policy by which, in consideration of ten annual payments of $46.02 each, it insured -his life in the sum of $1,000, the loss to- be paid to. his personal representative at his death. Hughes made seven annual payments on the policy, and died on June 28, 1897. Appellee, as his administrator, filed this suit on the policy; and appellant resisted a recovery of the full amount, insisting that only the reserve value of the policy, which -amounted to $151.84, could be recovered. The policy was subject to these conditions: “(2) The insured shall not, without the written consent of the company, keep a liquor saloon, or personally engage in blasting, mining, or submarine operations, or serve in any capacity on any vessel, boat, or railway train, or in the production ojf highly-inflamm-able or explosive substances, or enter any military or naval service whatsoever, the militia excepted. (3) In case the person whose life is’insured shall become intemperate in the use [30] of intoxicating liquors or opium, the company may, at its option, cancel this policy; and its reserve value, calculated by the American six per cent, table of mortality, less any outstanding indebtedness against the policy, shall, in case of such cancellation, be paid to the legal owner of the policy. (4) In case the insured shall die in consequence of the violation of law, or shall become a drunkard, or have delirium tremens, this policy shall become null and void. (5) Should the insured die during or by reason of the violation of any of the conditions and agreements specified above in paragraphs 2, 3, and 4, then the reserve value only of this policy at the time of the death, calculated by the American six per cent, table of mortality, shall be paid.” Appellant alleged that the insured, without its written consent, kept a liquor saloon up to and at the time of his death; that he became intemperate in the use of intoxicating liquors, and died during the intemperate use thereof, and by reason of such use. It offered to pay the reserve value, $151.84, and claimed thahno more could be recovered. The1 proof showed that the insured, Hughes, and Joshua Burdette owned, as partners, a saloon in Middlesboro, which they had run from some time in the year 1891; that the appellant’s State agent, as well as its local agent, knew this fact, and that, the payment of the annual premiums was accepted with this knowledge; that the insured drank a good deal (as to the amount of his drinking the proof was conflicting); that Burdette ran the saloon, but the insured was about it most of his time, opened it in the morning, and attended to it when for any reason Burdette was out, until about December, 1896, when his health failed; that he had consumption, and, was confined to his room from about December, 1896, until he died, the following June; and that he died of consumption, and was [31] unable for several months before his death to drink as much whisky as the physicians prescribed for him. On this evidence the court instructed the jury as follows: “(1) The court instructs the jury that the law is for the plaintiff, and the jury will find for the plaintiff in the sum of $1,000, unless the jury believe from the evidence that the death of the plaintiff's intestate, J. H. Hughes, was caused by the excessive use of intoxicating liquors. In that event the verdict of the jury will be for the defendant. (2) The court further instructs the jury that if deceased, John Hughes, died while he was the keeper of a liquor saloon, the law is for the defendant, and they will so find, unless they further believe from the evidence that the defendant insurance company or its agents had notice that said Hqglies was in the liquor business, and after said notice continued to accept and receive the premiums from said Hughes. If they so believe, the law is for the plaintiff, and they will so find.” It is insisted for appellant that the court should also have instructed the .jury that if Hughes became intemperate in the use of intoxicating liquors, and continued in the intemperate use of such liquors, up to the time of his last illness, they should only find for the plaintiff $151.84. An instruction to this effect was asked by appellant on the trial, andl was properly refused; for it was not a condition in the policy that only the reserve fund could be recovered if the insured continued in the intemperate use of intoxicating liquor up to the time of his last illness. The condition of the policy is, should the insured die during the violation of the clause referred to. The insured having been an invalid for six months before he died, and his habits during that time good as to the use of intoxicating liquor, it can not be said that he died during a violation of [32] the stipulation -of the policy against the intemperate use of intoxicating liquors. It is also insisted for appellant that the court erred in instructing the jury that there might be recovery of the full amount of the policy, although the insured was at his death the keeper of a liquor saloon, if appellant had notice of this fact, and with such notice continued to accept the premiums from him. But the second instruction given by the court is taken substantially from the third and fourth instructions asked by appellant, and it can not complain of an instruction which it asked itself. The third and fourth instructions asked by appellant on the trial both conceded that it could not make this defense if it accepted the premiums with knowledge of the facts. They only differ from the one given by the court in qualifying the notice necessary. Where a principle of law is conceded by both parties on the trial, in the instructions they asked, this court .will not ordinarily reverse; and, on the facts of this case, we are of opinion there should not be a reversal here. The insured was not at the time of his death the keeper of a liquor saloon within the meaning of the contract. The condition, “should the insure die during” the violation of the preceding clauses, refers only to the state of things existing at his death. For six months before his death the insured had been an invalid. He had followed no occupation, and, while he was the owner of a half interest in-the saloon, he did not ‘keep a liquor saloon” during that time. If up to December, 1896, he had served as brakeman on a railway, or as a deck hand on -a steamboat, and had then become an invalid, and after that time had not engaged in the service any more, it could not be maintained that his death under such circumstances would have come within the meaning of the contract. The pur [33] pose of the stipulation was to protect the company against death in callings which are especially perilous; but so long a time had elapsed in this case since the deceased had followed the calling, by reason of an incurable disease rendering him a hopeless invalid, that we do not think the case falls within the letter or spirit of the contract. He died of consumption. He owned at his death a half interest in the saloon, but he was not the keeper of the saloon at that time, >and had not been for six months. The inhibition of the contract refers only to the personal occupation of the deceased at the time of his death, not to his owning a saloon, or an interest in it. Stipulations of this character in policies of insurance are always strictly construed against the insurer. Judgment affirmed.