
    Union Mutual Life Insurance Co. v. Reif.
    A policy of life insurance was to be void, if either of the answers to the following questions was false or untrue: “Has the party whose life is to be insured ever been intemperate?” “Ho.” “Is the party now of correct and temperate habits ?” “Yes.” Held, that these questions and1 answers refer to the habits of the insured as to the use of intoxicating liquors, and not to occasional practices; and if his usual and general habits were to abstain, or to use in moderation, an occasional indulgence to excess does not render the answers false or untrue. But it is not necessary to the existence of intemperate habits, that the excessive use of intoxicating liquor should be continuous and daily, and an instruction to the jury, that a continuous and daily use of intoxicating liquor is necessary to constitute such a habit, is erroneous.
    Error to the Superior Court of Cincinnati.
    The action below was founded upon a policy of insurance upon the life of Charles Reif, who died October 19, 1872. The policy was dated July 22, 1872, and was for the sole and separate use of the mother of the insured, who is the plaintiff in the action, in case she survived him.
    Several defenses were specially pleaded, upon which issue was joined and evidence submitted, one only of which is noticed by the court in its opinion.
    One of the conditions upon which said policy was issued was, that:
    “ Sixth. The apjilication herefor shall form and be a part of this policy; and if any statement made therein, or in the medical examiner’s certificate accompanying it, by the applicant, or the person whose life was to be insured, shall be found witrúe, in any respect, then this policy shall be null and void.”
    It is averred that the following answers made by Charles Reif in his application, were false and untrue:
    “ Has the party whose life is to be insured ever been intemperate?” Answer: “No.”
    “Is the party now of* correct and temperate habits?” Answer: “Yes.”
    
      Appended to said application was an agreement of the applicant, that if there was any untrue or fraudulent allegation contained therein, which application it was also agreed should form and be a part of the policy, or if anything material or important affecting the risk applied for, which the company ought to know, has been concealed, withheld or omitted, the policy and all moneys paid thereon were to be forfeited.
    Evidence was offered in support of this defense. This evidence tended strongly to prove that prior to and at the date of said application the applicant was in the habit, of being intemperate — of periodically getting drunk, though there were times and occasions of longer or shorter duration during which he was duly sober.
    In view of this testimony counsel for plaintiff in error requested the court to charge as follows:
    “ 9. The court charges you, that if Charles Reif was addicted, before July 16, 1872, to periodical spreeing or getbmg drxmh, and the insurance company, its agents, and examining physician were ignorant of, such fact when the insurance was effected and the premium paid, the policy is void, and your verdict must be for the defendant, even though there were periods of longer or shorter duration in which he was duly sober.”
    Also: “ 11. The court charges you, that Charles Reif was not of correct and temperate habits, if, at said time (the 16th day of July, 1872), and for a period before that sufficiently long to beget a, habit, he was in the hábil of period/icalby getting drxmh, even though there were times and occasions of longer or shorter duration'in which he was duly sober.”
    
    Each of the foregoing requests were offered separately and refused, and exceptions taken.
    Upon this subject the court charged as follows:
    “ The first and second of these answers which, it is claimed, avoids the policy, are given- to question 5 in said application. Said question is as follows :
    “ Has the party whose life is to be insured ever been intemperate? To which Charles Reif answered, ‘No.’ And also, Is the party now of correct and temperate habits. To which said Charles Reif answered, ‘ Yes.’ It is obvious that these inquiries are not whether the person whose life is to be insured was ever drunk, or whether he ever used intoxicating drinks; but whether he has ever been intemperate, that is, whether, at any period of his Ufe, his usual and daily habits were such as to constitute and render him what is hnown as an intemperate mam, — a man habitually under the influence of too great an amount of intoxicating liquor. They do not relate to the question whether the applicant habitually uses intoxicating drinks, for he may do this and yet be1 a temperate man; but whether, at any period, or at present, he habitually used, or now uses, intoxicating drinks to such excess as to make him an intemperate man. If you find, from the testimony^ that Charles Reif did so habitually use intoxicating drinks to excess, then the plaintiff cannot recover in this case.”
    The jury rendered a verdict for the plaintiff below. A motion for a new trial was overruled and after a judgment was rendered it was affirmed in general term.
    A reversal is now sought on several grounds, and among them for error, in charging and refusing to charge as above stated.
    
      Sayler ds Sayler, for plaintiff in error :
    The charges requested and refused by the court on the subject of intemperance were correct propositions and charges, and should have been given as requested.' May on Ins. 328, 329, 330, 331, 332; Bunyan on Ins. *38, § 12, ch. 2 ; Bliss on Life Ins. 1 ed. pp. 166-168, §§ 124, 125 ; 2 ed. pp. 179-183, §§ 123, 124, and p. 428, § 252 ; Sieveking, Medical Adviser in Life Ins. 59, 96-101 ; Southcomb v. Merriman, 1 Car. & M. 286; Hutton v. Waterloo Life Ass. Co., 1 Fost. & F. 735 ; Mowry v. Home Life Ins. Co., 9 R. I. 346, 354; Horton v. Equitable Life Ass. Soc. of U. S., 2 Big. L. & A. R. 108; Conover v. Massachusetts Mut. Life Lns. Co., 3 Dillon, 217; Miller v. Mut. Ben. L. Ins. Co., 34 Iowa; 222; Mutual Benefit Life Ins. Co. v. Holterhoff, 2 Cin. Sup. Ct. R. 379.
    
      Hoadly, Johnson & Colston and R. W. Nelson, for defend- and in error, claimed that the charge of the court on the subject of intemperance was correct, and cited Insurance Co. v. Holterhoff, 4 Bigelow, 377; Fox v. Insurance Co., 4 Bigelow, 461; Van Valkenburg v. Ins. Co., 70 N. Y. 606; Mowry v. Ins. Co., 9 R. I. 355.
   Johnson, J.

The ninth request was, that if the jury found that the applicant was, before the date of his application, addicted to periodical spreeing or getting drunh, without the knowledge of the company or its agents, the policy would be void, even though there were periods of longer or shorter duration in which he was duly sober.

The eleventh was in substance the same, that, if “ he was in the habit of periodically getting cl/runh, even though there were times aud occasions of longer or shorter duration in which he was duly sober,” the policy was void.

Each of these requests was refused, and in lieu thereof the court charged that it was obvious that these questions are not, whether the insured was ever drunk, or whether he ever used intoxicating liquors; “ but whether he was ever intemperate; that is, whether at any period of his life his usual and daily habits were such as to constitute and render him what is known as an intemperate man, — a mam, habitually under the influence of intoxicating liquor I

An occasional excess in the use of intoxicating liquor does not, it is true, constitute a habit, or make a man intemperate, •within the meaning of this policy; but if the habit has been formed and is indulged in, of drinking to excess and becoming intoxicated, whether daily and continuously, or periodically, with sober intervals of greater or less length, the person addicted to such a habit cannot be said to be of temperate habits, within the meaning of this policy.

In view of the fact, that the evidence strongly tended to show that it was the habit of ‡-he insured to indulge to excess at frequent times, and did not tend to show a case of daily or continuous state of intoxication, this charge was clearly misleading. Erom it the jury might well understand, and in view of the whole evidence, we think, may reasonably have understood, that Charles Rief was of correct and temperate habits, although it was his habit to get drunk periodically and frequently, with sober intervals of longer or shorter duration.

The habit of using intoxicating liquors to excess is the result of indulging a natural or acquired appetite, by continued use, until it becomes a customary practice.

This habit may manifest itself in practice by daily or periodical intoxication or drunkenness.

Within the purview of these questions it must have existed at some previous time, or at the date of the application, but it is not essential to its existence that it should be continuously practiced, or that the insured should be daily and habitually under the influence of liquor.

Where the general habits of a man are either abstemious or temperate, an occasional indulgence to excess does not make him a man of intemperate habits. But if the habit is formed of drinking to excess, and the appetite for liquor is indulged to intoxication, either constantly or periodically, no one will claim that his habits are temperate, though he may be duly sober for longer or shorter periods in the intervals between the times of his debauches.

In Miller v. Mutual Benefit Ins. Co., 34 Iowa, 222, the insured was shown to be a man who indulged in a periodical habit of driuking to excess, and protracting these debauches until liis strength was exhausted. These excesses were not of long duration, and were followed by seasons of sobriety which would last for mouths. In one of these debauches, he died of delirium tremens. It was held he died from intemperance. Who would say that such a man wras of temperate habits? Such a habit of intemperance is quite as material to the risk, and equally as much within the terms of this policy, as the habit, of daily intoxication. Indeed, high medical authority is not wanting to show that periodical drunkenness, the result of an uncontrollable appetite, is generally much more excessive, and therefore more dangerous, than daily habitual intoxication.

But it is claimed that the latter part of this charge cures any error that may exist, caused by the use of the word “ daily,” in the first part. We think not. The concluding sentence: “If you find from the evidence that Charles Reif did so habitually use intoxicating drinks to excess, then the pla’ntiff cannot recover,” referred the jury back to the definition, wherein they are told that if his usual cmd daily habits were to be under the influence of liquor, he could not recover, and was not a modification, but a? reiteration of the error.

Judgment reversed and cause rema/ndedfor a new trial.  