Asa Cummings v. Connecticut General Life Insurance Co

• Decision Date: 14 January 1930
• Parties: ASA CUMMINGS v. CONNECTICUT GENERAL LIFE INSURANCE CO
• Court: Vermont Supreme Court

148 A. 484

102 Vt. 351

ASA CUMMINGS v. CONNECTICUT GENERAL LIFE INSURANCE CO

Supreme Court of Vermont

January 14, 1930

November Term, 1929.

Question Answered before Ojection---Insurance---Effect of Denial of Liability on Specific Grounds---Waiver---Refusal of Requested Instruction Including Unsound Provision---Exclusion of Testimony as to Beneficiary's Health---Witnesses---Cross-examination To Test Credibility---Collateral Matters---Silence of Witness Accused of Misconduct in Nodding To Witness, When Subsequently Testifying, as Admission---Argument of Counsel---Concealment---Duty of Insured To Disclose Material Change in Health between Time of Application and Examination and Time When Policy Becomes Effective---Duty of Beneficiary With Respect To Revealing Change in Insured's Condition.

1. Where witness answered question propounded prior to objection being interposed and overruled, and there was nothing on record to indicate that exception then claimed and allowed was treated below as seasonably claimed, answer being responsive, Supreme Court can do nothing but apply ordinary rule and hold exception unavailing.

2. Where insurer denied liability on ground of false representations in application, it waived defense that premium did not reach it during life of insured.

3. Waiver of defense by an insurer in order to be effective need not embrace all elements of an equitable estoppel, since an insurer who elects not to take advantage of a forfeiture waives it, though insured was not misled to his prejudice and is bound to treat contract of insurance as though no forfeiture had occurred.

4. Waiver by insurer of a ground of forfeiture may be either express or implied, before or after forfeiture.

5. When one defense is specified by an insurer as its reason for refusing to pay a loss, all other defenses are waived.

6. Waiver is usually a question of fact, since question most always depends on acts or declaration of an indecisive and doubtful character, but, where all facts and circumstances are undisputed, question is for court.

7. In action on life insurance policy by husband of insured as beneficiary, refusal of court to comply with plaintiff's request to instruct jury that insurer, by its letters denying liability on ground of false representations in application and its further conduct in failing to raise issue that policy did not become effective on account of non-payment of premium during life of insured by its pleadings in previous trial of same case, amounted to a waiver, held without error, since requested instruction included unsound provision defendant's conduct in failing to raise issue at former trial having no effect on waiver.

8. In such action, exclusion of testimony regarding plaintiff's health, held not error, since that question was not before court, and, although physical condition of insured was involved and could be shown, reason why she worked out of doors was of no importance.

9. Credibility of a witness is always open to attack, and a wide latitude is allowable to a cross-examiner for purpose of showing who and what witness is, extent thereof lying largely in discretion of trial court.

10. While collateral matters may not be gone into for mere purpose of eliciting something to contradict, collateral matters may be within discretion of court.

11. Where court, at previous trial of case while plaintiff's daughter was on stand as witness in his behalf and on cross-examination by defendant's counsel was being questioned as to whether her father had not told her to deny a certain matter when she took stand as a witness, accused plaintiff of shaking his head toward witness and threatened him with punishment if he did so again, plaintiff's silence at time rebuke was given by court did not constitute an admission that he was attempting to tell witness what to say, since his denial at that time would have been inconsistent with decorum, and not only would have interrupted orderly progress of trial, but would have involved him in dispute with court, and would or might have seriously prejudiced his case before jury.

12. Where court, at previous trial of case while plaintiff's daughter was on stand as witness in her behalf and on cross-examination by defendant's counsel was being questioned as to whether her father had not told her to deny a certain matter when she took stand as a witness, accused plaintiff of shaking his head toward witness and threatened him with punishment if he did so again, and subsequently in that trial plaintiff was a witness for himself, his failure to improve that opportunity to deny or explain charge made by court was as significant as if an opportunity for immediate denial was offered and declined, so that in subsequent trial, where plaintiff was questioned regarding his telling his children how to testify in case and denied that he ever told them what to say, and was then asked particularly if he had not at former trial from his place within bar attempted to instruct his daughter how to testify, and denied that he had, evidence of court's accusation in that regard at previous trial under circumstances shown was admissible to impeach plaintiff.

13. In action on life insurance policy by husband of insured as beneficiary, argument by defendant's counsel that plaintiff, instead of going to a doctor whom they knew went to a stranger, referring to doctor who examined insured at time of her application, held not unwarranted, in view of testimony tending to show that examining physician was selected because plaintiff thought he would be more likely to pass insured than some other doctor.

14. In such action, argument by defendant's counsel that insured took heart tablets just before her medical examination, held improper, where only basis in evidence for it was fact that she had such tablets, and that she gave false answers in her application.

15. Concealment of character to avail an insurance company as a defense is a designed and intentional withholding of any fact material to the risk, which assured ought in honesty and good faith to communicate.

16. Where material change for the worse in health of applicant takes place after making application and medical examination and before policy becomes effective, it is duty of applicant to disclose it, if he knows about it.

17. In such action, where one of defenses was that plaintiff who was beneficiary in policy, concealed change for the worse in insured's physical condition between time of application and medical examination and time when policy became effective, requested instruction, that plaintiff was under no obligation to inform defendant of such change in insured's physical condition unless he knew that he was beneficiary named in policy, should have been given, since a beneficiary named in policy who is ignorant of his relation to it is under no obligation to tell what he knows, and fact that he was agent of insured in forwarding premium does not, alone, impose upon him duty of disclosing a matter having nothing to do with his agency.

ACTION OF CONTRACT on life insurance policy. Answer setting up affirmative defenses of fraudulent misrepresentations and concealment, and that first quarterly premium did not reach defendant during lifetime of insured and therefore that policy did not become effective. Plaintiff claimed that defendant by its conduct and assertions had waived such forfeiture, if it had occurred. Trial by jury at the June Term, 1928, Caledonia County, Buttles, J., presiding. Verdict and judgment for plaintiff to recover $ 24.02, being amount of quarterly premium received by defendant, with interest and costs, which had been paid into court under county court rule 38 by defendant. The plaintiff excepted. The opinion states the case. Reversed and remanded.

Judgment reversed, and cause remanded.

Shields & Conant for the plaintiff.

The subject-matter not having been touched in direct examination, question as to whether plaintiff or his wife had paid first premium on other applications for insurance was not proper cross-examination, for it cannot be shown that a person does or does not do some particular act because he did or did not do the same or similar act on a previous occasion. State v. Donaldson, 101 Vt. 483, 141 A. 684, 685; State v. Lapan, 101 Vt. 124, 140, 141 A. 686, 694; Loomis, b. n. f. v. Abelson, 101 Vt. 459, 144 A. 378, 379; Ronan v. Turnbull Co. et al., 99 Vt. 280, 290, 131 A. 788; Farnham & Sons v. Wark, 99 Vt. 446, 450, 134 A. 603; Scott v. Bailey, 73 Vt. 49, 51, 50 A. 557; State v. Wilkins, 66 Vt. 1; Phelps v. Conant, 30 Vt. 277.

Where denial of liability by an insurance company is placed upon a particular specified ground, other grounds are waived, and the company is estopped from asserting them. Railway Company v. McCarthy, 96 U.S. 258, 267, 268, 24 L.Ed. 693; Brink v. Insurance Co., 80 N.Y. 108 113; Holt v. Natl. Life & Acc. Ins. Co. (Mo. App.), 263 S.W. 524, 525; Security Ins. Co. v. Laird (Ala.), 62 So. 182, 184; Liverpool & London & Globe Ins. Co., Ltd., of Eng. v. McCree, 213 Ala. 53, 105 So. 901, 902; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909, 911; Watts v. Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812, 813; Vulcan Ins. Co. v. Johnson, 74 Ind.App. 62, 128 N.E. 664; National, etc., Co. v. Elliott, 60 Ind.App. 112, 108 N.E. 784; Travelers Ins. Co. v. Fletcher American Natl. Bank (Ind.), 150 N.E. 827; Moore v. Natl. Acc. Co., 38 Wash. 31, 80 P. 171; Smith v. Grange Mut. Fire Ins. Co., 234 Mich. 119, 208 N.W. 145; Danville v. Farmers' Mut. Fire Ins. Co. (Mich.), 71 N.W. 517; Towle v. Ionia, Eaton & Barry Farmers' Mut. Fire Ins. Co., 91 Mich. 219, 51 N.W. 987; Farmers' Milling Co. v. Mill Owners', etc., Ins. Co., 127 Iowa, 314, 103 N.W. 207, 208; Western & A....