Bickford v. Travelers Ins.

Accident insurance. Execution and delivery of policy. Recovery under common counts. Must state grounds of motion to dismiss. No recovery after date of proof of claim. Jurisdiction of county court by reason of amount involved. x. The plaintiff is not required to prove the execution of an accident insxxrance ticket on trial unless the defendant has, under county court rule No. 12, given notice that it will deny the execution. 2. The possession of the ticket by the plaintiff is evidence tending to show that it has been issued and delivered to him by the defendant. 3. The defendant objected to the admission of the ticket as evidence for the reason that no recovery could be had upon it under the general counts. Held, that the objection was properly overruled, for (a) a recovery may be had upon a conditional contract under the general counts, and (<$) in this case there was a special count in indebitatus assumpsit upon this accident ticket, and it maybe pi-esumed, the contrary not appearing, that the recovery was upon this count only. 4. A party should state the precise grounds on which he bases his motion for a verdict, and if he does not, the trial court may well disregard it. 5. The contract of insurance in this case provided for an indemnity not exceeding twenty-six consecutive weeks, and that proofs of claim should be furnished within seven months from the date of injury. Held, that no recovery could be had for any period after the date of the final proof of loss. 6. Held, that it did not affirmatively appear that the plaintiff brought his suit to the county court in bad faith, and that, therefore, the defendant’s motion to dismiss for want of jurisdiction by reason of the amount involved, was properly overruled.

Assumpsit. Plea, the general issue. Trial by jury at the September term, 1894, Orleans county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts. The plaintiff claimed to recover upon a policy of accident insurance. Upon the trial he offered in evidence a paper purporting upon its face to be an accident ticket, the material part of which is as follows : “The Travelers Insurance Company, of Hartford, Conn., hereby insures G. D. Bickford, of Barton, Vt., for the term fixed by the coupons still attached hereto, against loss of time not exceeding twenty-six consecutive weeks, resulting from bodily injuries effected during the term of this insurance, through external, violent, and accidental means, which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business ; or in event of death solely therefrom within ninety days, will pay the principal sum to his legal representatives; except that this ticket insures females against death only; does not insure persons under sixteen or over seventy years old, employes on public conveyances while on duty, nor persons bereft of reason, sight or hearing; covers only injuries received within the civilized limits of the United States, Canada, Newfoundland, Mexico, West Indies and Bermudas, including travel by regular passenger or mail lines on sea between such limits ; that the company’s total liability hereunder shall not exceed three thousand dollars ; that its limit of insurance under accident tickets is six thousand dollars, with thirty dollars weekly indemnity, and it will return on demand to insured, or his legal representatives, all premiums paid in excess thereof. With above exceptions this ticket grants fifteen dollars per week indemnity for disabling injuries, three thousand dollars principal sum ; provided, “2. Immediate written notice, with full particulars and full name and address of insured, is to be given said company at Hartford of any accident and injury for which claim is made. Unless affirmative proof of death or duration of disability, and of these being the proximate result of external, violent, and accidental means, is so furnished within seven months from time of accident, all claims based thereon shall be forfeited to the company. No legal proceeding for recovery hereunder shall be brought within three months after receipt of proof at this office, nor at all unless begun within one year from date of alleged accident. “Rodney Dennis, Secretary. J. G. Battertan, President.” There were attached to the ticket two coupons, which extended the same for two days from the date punched out in the margin, which was January 6’, 1893, twelve o’clock noon. The defendant objected and excepted to the introduction of this ticket, for the reason that there was no evidence to show ■its execution, or that it had been issued and delivered to the plaintiff, and for the further reason that no recovery could be had upon the same under the general counts. The declaration contained the ordinary common counts in assumpsit, and also contained the following special count: “In a plea of the case, for that the.defendant, heretofore, to wit, on the date of this writ, at Barton, in the county of Orleans, was indebted to the said plaintiff in the sum of five hundred dollars, for money due to said plaintiff from said defendant upon an accident ticket issued by said defendant to said plaintiff on the sixth day of January, A. D. 1893, insuring said plaintiff against loss of time not exceeding twenty-six weeks ; and in consideration thereof, the said defendant then and there undertook and faithfully promised the plaintiff to pay him, the said plaintiff, the sum so due as aforesaid when thereto afterwards requested. “Yet though often requested, the defendant has never paid the same, but wholly neglects and refuses so to do.” The only pleadings filed by the defendant were the general issue. County court rule No. 12, which is referred to in the opinion of the court, reads as follows: “If an action is founded on an instrument purporting to have been signed by the defendant, the plaintiff' shall not be required to prove the execution of the same on trial unless the defendant shall have filed within the rule for filing special pleas a plea of the general issue, with a notice thereto appended that he shall deny the execution of such instrument. “If handwriting is to be disputed in a case when the execution of a written instrument is put in issue by the pleadings, special notice thereof shall accompany the pleading raising such issue. “This rule shall apply to pleas in offset, mutatis mutandis.” The plaintiff was injured January 7, 1893. Ten weeks from that date he executed and forwarded to the company proofs of claim which were duly received. Upon the trial the defendant insisted that the plaintiff could not recover for injuries after the date of this proof of claim, which was the only one filed by him, excepted to the admission of all evidence as to disability subsequent to that time, and requested the court to charge the jury that the recovery of the plaintiff must be limited to the sum of one hundred and fifty dollars. The court instructed the jury that they might give the plaintiff his actual damages which occurred after the filing of said proof, as well as before, and to this the defendant excepted. At the close of the evidence the defendant moved for a verdict in its favor, and with reference to this motion the exceptions were as follows : “At the close of all the evidence the defendant asked the court to direct a verdict for the defendant, upon the ground that no recovery could be had under the declaration as disclosed by the evidence, which is hereby referred to and made a part hereof, which motion was overruled, to which the defendant excepted.” The defendant further moved the court to dismiss the suit, for that it had no jurisdiction as appeared from the evidence. This motion was overruled, and the defendant éxcepted. The jury returned a verdict for the plaintiff in the sum of two hundred and ten dollars. The declaration of the plaintiff was in general assumpsit. Under this declaration the plaintiff could not recover upon the special contract set forth in the accident ticket. Cittter v. Powell, 2 Smith’s Lead. Cas. 7th Ed. 61, 62; Beede v. Fraser dr Co., 66 Vt. 114. If the cause of action as set forth originates in a contract, the contract must be proved as laid. Way v. Wakefield, 7 Vt. 223; Wilkins v. Stevens, 8 Vt. 214; Wainwright v. Straw et al., 15 Vt. 215 ; Matlocks v. Lyman & Cole, 16 Vt. 113; Stearns v. Haven et al., 16 Vt. 87 ; Porter & Ballard v. Munger, 22 Vt. 191; Perry v. Smith, 22 Vt. 301 ; Kent v. Bowker, 38 Vt. 148 ; Groot v. Story, 41 Vt. 533 ; Doon v. Ravey, 49 Vt. 293 ; Bradley v. Phillfis, 52 Vt. 517; Chafinan v. Goodrich, 55 Vt. 354; State v. St. Johnsbury, 59 Vt. 332 ; Mann et al. v. Bur chard et al., 40 Vt. 339. Where a special contract contains conditions precedent, the performance of those conditions must be alleged in the declaration; Donahue v. Windsor County Ins. Co., 56 Vt. 374; Cooledge v. Continental Ins. Co., 67 Vt. 14; 1 Archibald’s Nisi Prius, *133 ; 1 Saund., PI. and Ev., *132 ; Lamfhcre Y. Cowen, 42 Vt. 182. There is no essential difference between the general counts and the special count in this declaration ; both proceed upon an absolute promise, while the promise proved was conditional. Latham et al. v. Rutley et al., 2 B. & C. 20; Strong v. Rule, 3 Bing. 315. The conditions in this contract do not modify the promise, but can be urged merely by way of defence. Hence, their performance need not be averred in the declaration. Seyk v. Miller's Nat. Ins. Co., 74 Wis. 67 ; Cooledge v. Continental Ins. Co., 67 Vt. 14; Tri-fijo & Bailey, Admrs., v. Life Ins. Co., 55 Vt. 100. . The contract being for the payment of money, and having been fully executed upon the part of the plaintiff, a recovery maybe had upon the common counts. 1 Chitty PI. 342; Way v. Wakefield, 7 Vt. 223; Wainwright v. Straiv & Cunningham, 15 Vt. 215 ; Mattocks v. Lyman et al., 16 Vt. 113 ; Bradley v. Phillips, 52 Vt. 517 ; Chaffee v. Rutland Rd. Co., 55 Vt. 110; Bank of Columbia v. Patterson's Admr., 7 Cranch 299 ; Sutton v. Bennett, 1 Aik. 197 ; Lat-ham v. Barrett, 1 Vt. 247; Stevens v. Talcott, 11 Vt. 25. The plaintiff was under no obligation to prove the execution of this instrument since the defendant had not denied it by its pleadings. County Court Rule No. 12. The plaintiff may recover for damages subsequent to the filing of his proof. The object of requiring the furnishing of proof of claim is to establish the fact and nature of the injury. DeGoff v. ffueen's Ins. Co., 38 Me. 501; Mut. Assur. Soc. v. Scottish U. & N. Ins. Co., 10 Am. St. R. 8Í9; Afiieens Ins. Co. v. Young, 11 Am. St. R. 51; McGlinchey v. Fid. & Cas. Co., 80 Me. 256 ; Olson v. St. Paul F. & M. Ins. Co., 35 Minn. 432; Teutonic F. Ins. Co. v. Mund, 102 Pa. 89; Btirkhard v. Travelers Ins. Co., 102 Pa. 262; Hoffman v. AEtna F. Ins. Co., 32 N. Y. 405. Even if the court is of the opinion that the plaintiff can only recover for the ten weeks previous to the filing of his proof of claim, still the county court has jurisdiction, for it does not affirmatively appear that the suit was not brought in good faith. Laddy. Hill, 4 Vt. 164; Kitridge v. Rollins, 12 Vt. 541; Stafford v. Richardson, 13 Vt. 224; Cooley v. Aiken, 15 Vt. 322 ; Waters v. Langdon, 16 Vt. 570; Man-welly. Briggs, 17 Vt. 176 ; Henry v. Tilson, 17 Vt. 479; Brainard v. Austin, 17 Vt. 650 ; Joyal v. Barney, 20 Vt. 154; Sanborn v. Chittenden, 27 Vt. 171; Hally. Wads-worth, 28 Vt. 419 ; Powers v. Thayer, 30 Vt. 361; Clark v. Crosby, 37 Vt. 188; Scott v. Moore, 41 Vt. 205 ; Field v. Randall & Durant, 51 Vt. 33 ; Worcester & Woodruff v. Lams on, 55 Vt- 350 ; Drown & Willard v. Forrest, 63 Vt. 557.