67 A. 821 (Vt. 1907), Joseph Ward's Admr. v. Preferred Accident Insurance Co.

Citation:67 A. 821, 80 Vt. 321
Opinion Judge:HASELTON
Party Name:JOSEPH WARD'S ADMR. v. PREFERRED ACCIDENT INSURANCE COMPANY
Attorney:Zed S. Stanton and George W. Wing for the defendant.
Judge Panel:Present: ROWELL, C. J., TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.
Case Date:October 05, 1907
Court:Supreme Court of Vermont
 
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Page 821

67 A. 821 (Vt. 1907)

80 Vt. 321

JOSEPH WARD'S ADMR.

v.

PREFERRED ACCIDENT INSURANCE COMPANY

Supreme Court of Vermont

October 5, 1907

October Term, 1904.

Judgment affirmed.

Zed S. Stanton and George W. Wing for the defendant.

Present: ROWELL, C. J., TYLER, MUNSON, WATSON, HASELTON, and POWERS, JJ.

OPINION

HASELTON

Page 822

[80 Vt. 325] This was an action of assumpsit on an accident insurance policy. The declaration set out the policy with the conditions on the back thereof. The defendant pleaded the general issue and four special pleas to which the plaintiff replied. Trial by jury was had. A verdict for the plaintiff was returned and judgment was rendered thereon.

The insurance company by a policy, which the plaintiff made an exhibit, insured the plaintiff's intestate as "contractor, office and travelling, " according to the written words of the policy. One S. S. Ballard, the general agent of the company for the county of Washington, took the application of Ward and forwarded it to the company, and the insurance was effected through said Ballard. Mr. Ballard was called as a witness by the plaintiff, and after he had testified as to the character and extent of his agency, he was permitted to testify, in substance, that in taking the application and effecting the insurance he knew Ward to be, and for a long time to have been, a railroad contractor engaged in building railroads and railroad bridges and abutments as well as a contractor in respect to other matters. This evidence as to the knowledge of the agent was, under the final ruling of the court in reference thereto, used, under objection and exception by the company, as tending to show the application of the words of the policy designating Ward's occupation. The evidence of the agent's knowledge of Ward's previous occupation bore of course only upon his knowledge of Ward's occupation at the time. The final ruling of the court was correct. Ballard's knowledge in the insurance transaction is taken to have been the knowledge of the company, he being its general agent throughout the district within which the insurance was effected, Carrigan v. Ins. Co., 53 Vt. 418; Fraser v. Ins. Co., 71 Vt. 482; and the company's knowledge that Ward was a railroad contractor acting in that occupation tended to show the sense in which the brief and elliptical phrase "contractor, office and travelling " was used in the policy issued by the company. The company's knowledge was one of the circumstances material to an interpretation and construction of the words that it used. Oral evidence with reference thereto did not vary the terms of the written contract and violated no rules of evidence. In the construction of contracts, the circumstances in which the parties contract may be looked at, and their common knowledge [80 Vt. 326] and understanding is sometimes, and is here, such a circumstance. Rioux v. Ryegate Brick Co., 72 Vt. 148; Granite Works v. Bailey, 69 Vt. 257; McGowan v. Griffin, 69 Vt. 168; Hart v. Hammett, 18 Vt. 127.

The agent Ballard was called as a witness by the plaintiff. On his cross-examination he was shown what the examining counsel denominated and what in fact was "a remnant of a paper," and the evidence of the witness tended to show that it was a part of the application for the insurance in question. The remnant had a burnt appearance. Before the close of the case, during an argument on a motion for a verdict in favor of the defendant made at the close of the plaintiff's evidence, this piece of paper was by the defendant offered in evidence in connection with Ballard's testimony, and was excluded, the court ruling that in the form in which it was, it was inadmissible without further evidence. This ruling was correct. Both the written and the printed matter on this paper were incomplete, and there was no evidence tending to explain its burnt and fragmentary condition as it came from the defendant's possession. The fragment showed the following words and parts of words: "contractor, not working, buil " and "office work & travell." The claim of the company was that if this paper had been received "buil" would have signified building and "travell" would have denoted travelling, and that the applicant's written statement of his occupation would have been shown to be contractor, not working, building, and that his duties in that occupation were...

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