94 Vt. 42 | Vt. | 1920
This is an action of assumpsit on a contract of insurance on the life of Orvie M. Jones, deceased. Before trial the declaration was amended by striking out the name of the administrator, and the cause proceeded on behalf of the beneficiaries, who were the widow and the children of the deceased. Trial was by jury, with verdict and judgment for the plaintiffs for the amount due under the terms of the pqlicy. The case is here on exceptions by the defendant.
The application for insurance was made August 14, 1914, the insured was examined by the defendant’s medical examiner the next day, and the policy was delivered and the first premium paid August 29, 1914. The policy antedated the application by four days, but the reason for this is here immaterial. The second premium was paid August 10, 1915, and the insured died August 29, 1915. The undisputed evidence was to the effect that he died of cancer of the stomach.
The application for the policy is expressly made a part of the contract between the parties. In the application the insured was asked what illnesses or diseases he had had since childhood. He named indigestion; and, in answer to'inquiries as to the number of attacks, their' dates, duration, severity, and results, he answered one in May, 1914, of a few days’ duration, mild in character, resulting in complete recovery. He stated that the attack was due to eating a hearty supper when very tired. He was asked to state every physician or practitioner whom he had consulted or who had prescribed for or treated him in the previous five years, and answered by naming Dr. F. M. McGuire of Montpelier, whom he said he had consulted in May, 1914. He gave the nature of the complaint as indigestion. He affirmed in answer to questions that he had stated in the application all ill
The claim of the defendant was that the policy was of no effect as a binding contract of insurance, for the reason that when the first premium was paid and the policy delivered the insured was not in good health, and for the further reason that it was rendered void by certain fraudulent representations of the insured made in the application for insurance. It was the theory of the defendant that at the time of the application the insured had an ulcer of the stomach, which later became malignant and cancerous. The defendant tendered and paid into court $489.84, being the amount of the premiums paid, aggregating $449.85, together with interest thereon and the taxable costs of the plaintiffs then accrued. The case was tried and submitted to the jury upon the theory that the plaintiffs were entitled, in any event, to a verdict for this amount.
At the close of the evidence the defendant moved for a directed verdict. Five grounds of the motion were specified. The first presented the claim that on the undisputed evidence the insured was not in good health at the time the policy was delivered and the first premium thereon was paid. The remaining grounds are directed to the claim, stated generally, that on the undisputed evidence the insured was guilty of fraud in the application, voiding the policy issued thereon. The court overruled the motion, and the defendant was allowed an exception as to each ground.
The point is made that the second ground of the motion, which was that the insured “made false and untrue answers in the statements to the medical examiner respecting matters material to the risk,” was too general to afford a basis of error, in that no specific statement is here pointed out. But the other grounds of the motion to the same effect amplify this general
The burden being upon the defendant to make out its claim that the insured was guilty of fraud voiding the policy, the precise question presented by that phase of the motion is whether on all the evidence there was any room for opposing inferences. The defendant’s evidence strongly tended to show that .the insured had been suffering from gastric ulcer for several years before the policy issued and that the trouble persisted, with periods of quiescence, finally developing into the malignant condition that caused his death. The fair tendency of the medical testimony was all to this effect. Plaintiffs rely upon the fact that the defendant’s medical examiner passed the insured as an excellent risk; but it fairly appeared from all the- evidence that at the time of his examination the trouble could be detected only through the subjective symptoms — the statements of the insured as to his past and present condition. For this reason the most that the plaintiffs can claim for the examination and the medical examiner’s testimony is that the insured then appeared to be in good health. Certain lay witnesses gave evidence to the same effect. Conceding, though not deciding, that the evidence of appearance of good health was sufficient to make the fact of good health at the time the policy was delivered a question for the jury, it by no means disposes of the defendant’s claim as to fraudulent representations.
The evidence was uncontradicted that the insured had been suffering from repeated attacks of a stomach trouble of sufficient severity to require medical advice and treatment for a period of. five to seven years. He had consulted and been treated for the trouble by several physicians other than Dr. McGuire during the five years preceding the application for the policy. The recurrence of the difficulty had come to be spoken of by him as “one of those attacks of indigestion.” In February, 1913, he consulted a Dr. Gannett in Boston and probably then, if not before, learned the real nature of the trouble. He consulted Dr. McGuire some time in the spring of 1914, and was under his
From these facts there can be but one conclusion. When the insured stated in his application, referring specifically to the occasion of his treatment by Dr. McGuire some three months before, in effect, that the only illness or disease he had had since childhood was a mild case of indigestion, due to eating a hearty meal Avhen overtired, resulting in complete recovery within a few days, he was unmistakably guilty of a deliberate falsehood. As to previous attacks, it is not a sufficient answer
But the general rule of exclusion is based upon the assumption that the beneficiary has a vested interest in the policy from the time of issue, while, as we have seen in the case at bar, the plaintiffs had no such interest. Their and the insured’s relations under this policy were similar to those of the parties under the certificate of insurance of a benefit society, giving the member power to change the beneficiary. See Modern Woodmen of America v. Headle, supra, and cases there cited. It is said in 14 R. C. L. 1439, that there is no doubt that the admissions and declarations of the insured are admissible against his beneficiary in the case of a benefit society, the reason assigned being that the beneficiary has no vested right.
It would seem that the view that the insured’s declarations are admissible against the beneficiary, under a policy reserving the right to change' the beneficiary, is logically correct. The insured is the party with whom the contract is made, and remains so until his death. Consequently up to that time he is the only party in interest. See Bacon on Ben. Soc., etc., § 460. It is merely the application of the general rule that declarations of deceased persons against their interest or right are admissible against those who claim in their interest or right. In re Bugbee’s Will, 92 Vt. 175, 182, 102 Atl. 484. Such is the express holding in some very well considered cases. Conn. Mut. Life Ins. Co. v. Hillmon, 188 U. S. 208, 47 L. ed. 446, 23 Sup. Ct. 294; Langdeau v. John Hancock Mut. Life Ins. Co., 194 Mass. 26, 80 N. E. 452, 18 L. R. A. (N. S.) 1190; Rosman v. Travelers’ Ins. Co., 127 Md. 689, 96 Atl. 875, Ann. Cas. 1918 C, 1047; Brown v. Mystic Workers, etc., 151 Ill. App. 517; Turner v.
We deem it unnecessary to undertake, an extended review of the authorities. The question has beén very carefully briefed and our attention called to a long list of pertinent cases. We come to the conclusion upon an examination of the eases that the distinction made between the rule applicable when the policy reserves to the insured the right of revocation, and when it does not, harmonizes the apparent disagreement of a large percentage of the cases. Formerly in the case of ordinary life insurance policies the insured could not change the beneficiary, while in case of benefit certificates the certificate or the by-laws of the society gave him that right. In the former the beneficiary had a vested interest, and in the latter he did not. As a result of this, it came to be a rule generally recognized that the admissions or declarations of the insured in the former case were not admissible against the beneficiary, while in the latter ease they were. Later — in recent years quite commonly — policies of ordinary life insurance have come to be written, reserving to the insured the right to change the beneficiary, to that extent giving such .policies the same effect as benefit certificates. With this change has come the change in the rule, generally, though not always, recognized.
We hold that the evidence of the insured’s declarations was properly received, and is for consideration in disposing of defendant’s motion here. The result is the defendant’s exception to the action of the court in overruling its motion is sustained. Plaintiffs may have judgment for the sum conceded at the trial below. The ease was heard on numerous other exceptions, as well as on a petition for a new trial on the ground of newly discovered evidence, but the disposition of the case on defendant’s motion renders it unnecessary to consider the questions thus presented.
Judgment reversed, and judgment for the plaintifs to recover $489.84 tvithout costs. Let the defendant recover its. costs.
After the foregoing opinion was handed down counsel for the plaintiffs had leave to file a motion for reargument, pending which the entry of judgment has been withheld.
The reasons assigned in support of the motion are for the most part a reiteration of the claims made in .the plaintiffs’ several briefs, and have already been fully examined by the Court. So far as thesé claims have not been specifically treated in the opinion, it is enough to say that they are not found to be pertinent to the question on which the case is turned. The burden of plaintiffs’ complaint is that the evidence was conflicting as to whether the insured was suffering from gastric ulcer before or at the time of making the application for the policy. But as shown in the opinion, that is not a controlling factor in the case. To bar plaintiffs ’ action it was only necessary for the defendant to show that one or more of certain specified representations of the insured were false and fraudulent. As already sufficiently appears, the answers given by the insured to the medical examiner respecting his previous condition of health, on the most favorable view of the evidence, were not true according to his best information and reasonable ground of belief.
In reaching the conclusion that the evidence as to the fraudulent character of the representations admits of but one result, the Court has relied upon certain declarations of the insured to the effect that he had previously been treated for gastric ulcer. Plaintiffs’ counsel criticize the testimony of the physicians who gave this evidence, quoting therefrom at some length in an attempt to show that it was contradictory and that no great reliance could be placed upon it. After all that is said, the fact remains as stated in the opinion. No attempt was made to contradict the testimony of the witnesses respecting these declarations, and their credibility was unimpeaehed. The declarations are therefore in the case and entitled to be considered. There is no foundation for the criticism that their testimony-on this subject is weak and entitled to little reliance Their statements as to what the insured said are clear and positive. Their only uncertainty was as to the time to which the insured referred; but as to this their testimony left no doubt that he referred to a time previous to the application for insurance. Assuming to quote from the transcript, it is said that the substance of Dr. Campbell’s testimony is contained in the answer, “I could not say positively what he said at the time.” What Dr. Campbell in fact said was this: After stating in positive terms the insured’s declaration that he had been treated for gastric ulcer, and that he had been under the care of a number of doctors at .different times, naming them, he said, in answer to a question relating to time, “I couldn’t say positively that he stated the time. ’ ’ This is too manifest a perversion of the testimony to be permitted to pass unnoticed.
Counsel challenge as unwarranted by the evidence the statement that the insured probably learned the real nature of the trouble on his visit to Dr. G-annett, if not before. It would doubtless be more accurate to say that the insured very likely then, if not before, learned the probable nature of the trouble. This conclusion would seem to be justified by "the insured’s declaration in effect that he had been treated for gastric ulcer by Dr. Gannett, taken in connection with the evidenee as to his having consulted the doctor when in Boston. It should be
Plaintiffs' counsel attempt to avoid the effect of this rule by saying, in substance, that they had no occasion to invoke the presumption, as the defendant relied in its brief solely upon the claim of legal fraud. However, the defendant did rely upon the claim of fraud, both in fact and in law, though special emphasis was laid upon the latter. There was occasion and ample opportunity for raising the point at .the hearing, and under the general rule it cannot be made the basis of a reargument.
It is now urged that, notwithstanding this rule, if a material mistake of law is made by the Court in deciding questions of law, a rehearing may be had. The general rule undoubtedly has such a limitation. Cunningham v. Blanchard, supra; Van Dyke v. Cole, supra. It should be, and we have no doubt is, the desire of courts to rectify any mistakes into which they may fall, when they may do so without contravening public policy and without working further injustice. Guilmont’s Admr. v. Central Vermont Ry. Co., 82 Vt. 266, 268, 73 Atl. 580. No mere pride of opinion will be suffered to stand in the way of accomplishing this result. But here no such mistake is pointed out.
Counsel treat the omission to refer to the presumption as conclusive that it has been disregarded to the prejudice of the plaintiffs. But not so, as we shall endeavor to make clear, though in doing so we may seem to prolong this opinion unnecessarily. In the original opinion we held that the undisputed evidence made a case of actual fraud; but that, if that were not so, the intent to deceive would, in the circumstances, be
But assuming that we are dealing with a case of fraud in fact, and that the presumption has the force of evidence in favor of the plaintiffs, still the result would be the same. The defence to the plaintiffs’ claim was-predicated upon the alleged fraud of the insured in making certain specified representations, any one of which, if established, would avoid the policy. The motion for a directed verdict challenged the right of the plaintiffs to go to the jury as the evidence stood on those issues. In determining on review whether the trial court erred in overruling the motion it is necessary to consider whether it discharged its legal duty when called upon to rule upon such a motion.
A satisfactory test, applicable to both cases alike, is whether it would be the duty of the court on motion to set aside the verdict, if in favor of the party having the burden in the one case, or against him in the other. Instead of going through the useless
The Supreme Court of the United States has said that trial by jury, in the primary and usual sense of the term at common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an officer invested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct .them on the law and to advise them on the facts and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. The Court remarked that this proposition has been so generally admitted and so seldom contested that there has been little occasion for its distinct assertion. Capital Traction Co. v. Hof, 174 U. S. 13, 43 L. ed. 873, 19 Sup. Ct. 580. Concerning the same matter it is said in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. 275: “The judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility.” The same Court has repeatedly announced that it is well settled that the court may withdraw the case from the jury altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed or is of such conclusive character that the court in the exercise of a sound judicial discretion would be compelled. to set aside a verdict returned in opposition to it; and that it would be an idle proceeding to submit the evidence to the jury when they could justly find only
Upon a review of the evidence bearing upon the decisive question in the case, examined in the light of the various suggestions of counsel in support of their motion, we remain satisfied with the result reached in the original opinion. The motion calls attention to nothing that would justify the ordering of a reargument.
Motion overruled.
Note. — When this 'case was originally argued it was assigned to Mr. Justice H'aselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Taylor.