89 Vt. 305 | Vt. | 1915
Charles C. Patterson died intestate April 22, 1912. The plaintiff, his administrator, sues to recover for the benefit of Sarah L. Patterson, intestate’s widow, a death benefit of $2,000 under a benefit certificate issued by the defendant to intestate in his lifetime, in which said Sarah L. is named as beneficiary. The original declaration is in assumpsit and charges in substance that the defendant being indebted to the plaintiff as administrator of the estate of Charles C. Patterson in the sum of' $2,000 for the benefit of Sarah L. Patterson, the beneficiary named in the policy hereinafter mentioned, by reason of the defendant’s having become the insurer of the life of the said Charles C. Patterson -by its certain policy of insurance issued to the said Charles C, Patterson in his lifetime and by reason of the death of the said Charles C. while said policy was in full force and effect, then and there in consideration thereof promised the plaintiff as such administrator to pay to the plaintiff for the benefit of Sarah L. Patterson, the beneficiary named in said policy, said sum on demand; yet, though often requested, the defendant has not paid the same nor any part thereof, but neglects and refuses so to do, all of which is to the damage of the plaintiff
The specification annexed to the declaration conforms to the requirements of P. S. 1504 and gives notice that plaintiff will seek to recover in this action “upon a certain policy of insurance issued by the defendant and whereby the defendant insured the life of the said Charles C. Patterson, which said policy of insurance is numbered 1,40-7,402, and is dated on the 30th day of December, 1911.” After reciting in detail the issuance of the original policy bearing the same number on June 3, 1907, and its subsequent surrender accompanied by application for change of beneficiary and the issuance of the policy on which the suit is brought in lieu of the original, the specification continues: “Whereby the defendant promised to pay to the executors or administrators of the said Charles C. Patterson for the benefit of Sarah L. Patterson, said beneficiary named in said policy, the sum of $2,000 upon the decease of the said Charles C. Patterson.” Then follows notice of the death of said Patterson and of the item of the policy upon which the claim is made.
At the September Term, 1913, defendant prayed oyer of the instrument and the plaintiff filed the benefit certificate involved in this case, which proved to be a sealed instrument. The plaintiff had leave to file an amended declaration and the cause was continued to the next term of court. Within the time allowed plaintiff filed, as an amendment of the declaration, a special count in covenant upon the instrument. Thereupon defendant moved to dismiss the count in covenant on the ground that it stated a different cause of action from that set out in the original declaration. The motion was heard at the March Term, 1914, and being overruled the defendant excepted. The defendant then moved the court to pass the cause to this Court before trial, which was denied and the defendant excepted. Both exceptions were allowed by the court and ordered to lie. Defendant was given time in which to plead and filed several pleas to the merits. The cause was tried by jury with verdict and judgment for the plaintiff and defendant reserved exceptions.
The first question presented relates to the declaration. The defendant insists that the court erred in overruling its motion to'dismiss the count in covenant. Plaintiff makes no question as to whether the order of the court disposing of the exception would avail to preserve the question after the defendant pleaded
The power of the court to permit the amendment challenged by the motion depends upon the construction to be given to No. 91, Acts of 1912. It is provided in one section of that act that counts in assumpsit, debt and covenant for the same cause of action may be joined in the same declaration. The right to join these different forms of actions on contract was conferred by No. 84, Acts of 1910, Avhich this section amends, but the earlier act conferred no express power to amend from one form to another after suit. Provision for this is found in the first section of the later act which reads: “In an action on contract brought to the county court, when the original writ contains a declaration in the common counts only, the court in its discretion * * * may after the plaintiff has filed his specifications, and it appears therefrom that he cannot recover under his original declaration, permit him to add special counts in assumpsit, debt or covenant for the same cause of action shown by his specifications.” etc.
Defendant claims that plaintiff could not amend by filing a count in covenant for the same cause of action, because, it says, the original declaration is not “in the common counts only;”
Does the amended count declare for the same cause of action? If so, the amendment was properly allowed. The original count was appropriately framed as a general count declaring upon an insurance policy and to it was annexed the specification required by P. S. 1504. But for objections to be noted later it was appropriately framed with reference to the cause of action declared upon in the amended count. See Wertheim, Admrx. v. Fidelity & Casualty Co., 72 Vt. 326, 47 Atl. 1071. The specification though referring to it as an insurance policy describes the certificate in question by number and date and contains other descriptive matter which makes certain the identity of the contract therein declared upon with that specially set out in the
The defendant urges, as a conclusive argument that the causes of action are different, that the action as originally brought could be maintained only by the beneficiary, while the action on the benefit certificate, being a sealed instrument,' could be maintained only by the administrator. A sufficient answer to this argument is that the question whether both counts attempt to declare on the same cause of action is not dependent upon the plaintiff’s being able to recover under both counts. The purpose of the statute permitting amendment from general assumpsit to covenant is to enable a plaintiff whose specification discloses that he cannot recover under his original declaration, to so amend that he can recover, provided only that he seeks to recover for the same cause of action. If, as the defendant contends, the plaintiff’s right of action, as distinguished from the cause of action, could have been defeated under the original declaration on the ground that the action should have been prosecuted by the beneficiary in her own name, it does not follow that the amendment should have been denied. The identity of the'cause of action would not depend upon the plaintiff’s right to maintain the action in his representative capacity. In support of this position defendant cites Davenport, Admr. v. N. E. Mut. Life Asso., 47 Vt. 528. All that that case decides is that where the averment of the declaration is. that the defendant promised to pay the beneficiaries or their legal representatives, the right of action is in the beneficiaries and not the administrator of the insured. The reason for this result, stated in Tripp & Bailey v. Insurance Co., 55 Vt. 100, 106, is that, as on demurrer
In what we have said we do not intend to intimate that the right of action on the original declaration was not in the administrator. That the recovery would not be for the benefit of the estate is all that was suggested in Modern Woodmen of America v. Headle et al., 88 Vt. 37, 47, 90 Atl. 893, L. R. A. 1915 A, 580. That the beneficiary cannot recover in covenant on a specialty, held in Morrill’s Admrx. v. Catholic Order of Foresters, 79 Vt. 479, 65 Atl. 526, affirming Fairchild v. Life Association, 51 Vt. 613, is as far as this Court has gone. This case does not require a further discussion of the question. For additional cases involving the question of the right of action on insurance contracts see Powers v. Fire Insurance Co., 69 Vt. 494, 38 Atl. 148, and cases there cited.
Early in the trial defendant moved that the plaintiff be required to elect on which count he relied. The court said in disposing of the motion: “We are inclined not to require at this time that they should elect; possibly we may later, when the evidence is in, require them to elect." The motion was not renewed. The defendant was not entitled to an election, at least while the plaintiff was putting in his evidence. In the exercise of its discretion the court had permitted the two forms of action to be joined. Being for the same cause of action, they stood as though joined in the original declaration and the defendant had no legal ground of complaint. Much of its argument here might be pertinent if addressed to the Legislature, but it does not support the claim that the court erred in denying the motion. Defendant complains that it was prejudiced because the burden of proof and the rules as to the admissibility of evidence were not the same under the counts. As we have seen the burden of proof was the same as to both counts. If the rules as to the admission of evidence were different — in what way has not been pointed out and is not evident — it is a matter for the Legislature and not for the courts. It is evident that defendant was not embarrassed, as the trial, of necessity, had to proceed under the count in covenant, the contract being under seal.
Before judgment the defendant moved in arrest. The ground of the motion is the same as that of the motion to dismiss the additional count in covenant and the disposition of the latter motion controls the results as to the former. While mis
The benefit certificate was received in evidence against defendant’s objection that it was inadmissible under the first count. It is enough to say that the second count afforded a sufficient basis for its admission.
Plaintiff offered the report made to the defendant by the camp physician of the camp to which intestate had made application for membership giving the result of his examination of intestate. As to this evidence the record states: “This was objected to, received and exception by defendant. No other objection nor ground of exception appears by the record to have been made.” There are numerous reasons why this exception cannot be sustained. The report of the medical examiners, which this paper was, is expressly made a part of the contract; no ground of objection was stated; defendant has waived the exception by failing to brief it properly. We have repeatedly held that the mere assertion that the court erred in a certain ruling presents nothing for review. The statement that the question can be better discussed in connection with another exception, when no reference is there made to the question, does not save it.
.Defendant claims that by the by-laws of the society, which are referred to and made part of the contract, the benefits under the certificate could be made payable only to members of the family; wife, children, heirs, blood relations, or persons- dependent upon the member; that Sarah L. Patterson had been previously married and that her former husband had procured a divorce from her in this State; that she had been remarried to intestate at St. Louis, Missouri, within three years after the
Defendaxxt claimed that the burden was on the plaintiff to prove that the intestate did xxot die at the hands of the beneficiary, and the court s!o charged. On the question whether intestate met his death at the hands of the beneficiary the court charged that the presumption of innocence oxx the part of the
The contract provides that “all the conditions contained in this certificate * * * shall be fully complied with,” and further that “this benefit certificate is issued and accepted upon the following express warranties, conditions and agreements.” Among the. conditions recited is one to the effect that the certificate shall be void if the member’s death shall occur by the hands of his beneficiary or beneficiaries, sane or insane, except by accident. This condition was not a condition precedent to the defendant’s promise and does not touch the plaintiff’s right of recovery. It was collateral to the defendant’s promise, being a condition subsequent, or as said in Mosley v. Insurance Co., 55 Vt. 142, 147, a condition of forfeiture inserted for the benefit and protection of the insurer, and need not have been alleged in the declaration. Schofield’s Admr. v. Insurance Co., 79 Vt. 161, 64 Atl. 1107, 8 Ann. Cas. 1152; Poole v. Mut. Acci. Asso., 75 Vt. 85, 53 Atl. 331; Wilson v. Insurance Co., 75 Vt. 320, 55 Atl. 662; Hersey v. Northern Assurance Co., 75 Vt. 441, 56 Atl. 95; Billings v. Insurance Co., 70 Vt. 477, 41 Atl. 516; Guiltinan v. Insurance Co., 69 Vt. 469, 38 Atl. 315; Farrell v. Insurance Co., 68 Vt. 136, 34 Atl. 478; Powers v. Insurance Co., 68 Vt. 390, 35 Atl. 331; Coolidge v. Insurance Co., 67 Vt. 14, 30 Atl. 798; Walcott v. Insurance Co., 64 Vt. 221, 24 Atl. 992, 33 Am. St. Rep. 923; Mosley v. Insurance Co., 55 Vt. 142; Tripp & Bailey v. Insurance Co., 55 Vt. 100. To entitle plaintiff to recover it was no more necessary for him to prove that the intestate did not die at the hands of the beneficiary than it was in the case last cited for the plaintiffs to prove that the insured did not die in a duel, or while employed on a railroad, or while engaged in any of the various hazardous employments specified in the conditions of the policy there in question. It is a matter of defence to be alleged and proved by the defendant. It would seem that
Though criticising, the defendant recognizes the rule now well settled in this State that the presumption of innocence is to be weighed as evidence; but it contends that this Court has not gone so far as to hold, where the burden is on a party to establish the fact that one did not meet his death at the hands of another, that the presumption discharges the burden. The argument is that, if such was the effect of the presumption, it would transfer the burden of proof to the other party. We do not reach this question. The defendant by its pleas asserted that intestate met his death at the hands of the beneficiary. It assumed the burden of establishing this fact as a matter of defence. On that issue there can be no doubt that the presumption of the beneficiary’s innocence was, under our rule, to be weighed as evidence against the defendant. On its request the court charged more favorably than defendant was entitled to and it has no reason to complain of the charge as given. The fact that the beneficiary is not a party of record does not affect the result. She is the party in interest and the one charged with a crime, which, if proved, would defeat the plaintiff’s recovery.' This entitles him to the benefit of the presumption.
In his application for membership plaintiff’s intestate stated that he had never had syphilis.' In one of its special pleas defendant alleged that at the time of making application intestate had the disease known as syphilis, and this was one of the litigated questions at the trial. On this issue defendant requested the court to charge the jury as follows: “On the question whether said Patterson had syphilis at the time of the application, the report of the camp physician attached to the application is not evidence that can be considered by you in determining that question.” The court refused to charge as requested and charged upon that subject, after reciting the request, in the following language: “We charge you in reference to that, that it having been made by an agent, as we remember it, of the defendant, that it may be used as evidence, the weight of which is to be judged by you, as bearing upon the question whether if Charles C. Patterson had syphilis at the time of the examination, he would have discovered it — the probability in the light of the testimony of the experts, whether the agent would likely have discovered it — Tut the weight of it is for you and that is
It will be presumed in support of the ruling, the contrary not appearing, that, as the court assumed, the camp physician in making the examination and report was acting as agent of the defendant. Among the warranties, conditions and agreements upon which the certificate was issued and accepted was the following: “The application for beneficial membership in the society made by the said member, a copy of which is hereto attached and made a part hereof, together with* the report of the medical examiner, which is on file in the office of the head clerk and is hereby referred to and made a part of this contract, is true in all respects, and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty and to form the only basis of the liability of this society to such member and to his beneficiary or beneficiaries, the same as if fully set forth in this benefit certificate. ’ ’ It will be observed that the report in question is expressly made a part of the contract. The only statement in the report material to the question before us is contained in the following question and answer:
‘ ‘ Question. Has he or has he had stricture or venereal disease? Answer. No.”
Here we have a report by the defendant’s medical examiner, referred to and made part of the contract, vouched for as true by the applicant, and as to which defendant claims that its statements are to be taken as strict warranties by the intestate. Could any use of it be made as evidence to the jury on the issue in question? The statement quoted above was made by the camp physician as agent of the defendant in the course of his employment and during the execution of his agency and is clearly in the nature of an admission, proper to be shown in evidence against the principal. Brink & Co. v. Insurance Co., 49 Vt. 442, 459; cases digested in 1 Vt. Dig. c. 2878-2882.
Defendant argues that, as much that appears in such reports is obtained from statements by the applicant, the use of the report as evidence permits statements made out of court to be- used as evidence of the fact. Granting that the examination may include statements by the applicant by way of history of the case, the report is none the less the opinion of the examiner as
From what we have said it is evident that the defendant was not entitled to the charge requested. The exception to the charge as given is general and does not point out the ground of objection. This being so, the exception is available only as to such grounds as are so obvious as not to require statement. Jewell v. H. T. & W. R. R. Co., 85 Vt. 64, 81 Atl. 238; State v. Comstock, 86 Vt. 42, 83 Atl. 539; Paige v. McCarty, 86 Vt. 127, 83 Atl. 659. It is probable and will be presumed that the exception was saved in aid of the exception to the refusal of its request to charge, and not for some special reason not disclosed. We do not consider whether the charge as given was strictly in accordance with the views herein expressed, as we regard the exception too general to afford the basis of any objection that could now be suggested.
We have considered all the exceptions briefed by the defendant and find none that should be sustained.
Judgment affirmed.