Asa Cummings v. Connecticut General Life Insurance Co.

• Citation: 142 A. 82,101 Vt. 73
• Parties: ASA CUMMINGS v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY
• Decision Date: 02 May 1928
• Court: Vermont Supreme Court

142 A. 82

101 Vt. 73

ASA CUMMINGS v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY

Supreme Court of Vermont

May 2, 1928

February Term, 1928.

Error Not Presented to Trial Court Not Considered by Supreme Court---Availability of Claimed Error in Excluding Question Where No Offer Made---Life Insurance---Effect of Reservation in Policy of Right To Change Beneficiary---When Admissions of Insured Available Against Beneficiary---Necessity of Excepting Party Showing Exception Sufficiently Explicit---Necessity of Offer of Excluded Evidence---Harmless Error---Cross-examination---Discretion of Court as to Extent---Construction of Defendant's Motion for Directed Verdict When Plaintiff Entitled To Verdict for Conceded Amount under County Court Rule 38---Grounds of Motion for Directed Verdict Too General---Consideration of Evidence by Supreme Court on Motion for Directed Verdict---Burden of Proof of Affirmative Defenses---Jury Questions---Parties Bound by Theory on Which They Try Case---Concealment in Law of Life Insurance---General and Insufficient Exceptions---Requirements of Appropriate Exception---Character of Infirmity as Jury Question---Instructions Construed.

1. Ground of alleged error in exclusion of evidence not presented to trial court will not be considered by Supreme Court on exceptions.

2. In ACTION OF CONTRACT on life insurance policy, fact that no formal offer was made as to testimony witness was expected to give, after question asked such witness, insured's physician, concerning whether she had ever complained to him about her heart, had been excluded, held not to prevent consideration of exception, where transcript sufficiently indicated that affirmative answer was expected.

3. In ACTION OF CONTRACT of life insurance policy, where court excluded, "as the case now stands" evidence of insured's physician that she, and other members of her family for her, had procured heart tablets, extending over a long period of years, and that insured and her husband, the beneficiary and plaintiff, had asked for them as a heart remedy, so far as it included admissions by insured, and defendant excepted, but at same time court ruled that the existence of the disease could not be proved by admission of insured as against plaintiff, evidence being offered for that purpose and excluded unconditionally, defendant did not waive its exception by failing to re-offer evidence.

4. When by terms of life insurance policy right to change beneficiary was reserved to insured, beneficiary has no vested right therein, there being no facts or circumstances tending to establish an equitable interest in the proceeds of the policy.

5. In ACTION OF CONTRACT on life insurance policy, evidence of insured's physician that insured had purchased heart tablets from him, and asked for them as a heart remedy, and had complained to him of heart trouble, offered as admission of insured that she had such disease, held admissible against beneficiary, in view of fact that by reason of reservation in policy of right to change beneficiary latter had no vested interest therein.

6. On review in Supreme Court, exception to exclusion of evidence is unavailing, where excepting party fails to cause it to appear that exception taken was sufficiently explicit to apprise trial court of its real point.

7. In action on life insurance policy, exception to exclusion of evidence regarding whether witness had had conversation with beneficiary about insured's heart and heart medicine held un-

availing because no offer was made as to what answer would be.

8. In action on life insurance policy, exclusion of evidence as to what beneficiary had told insured's physician respecting heart tablets, if error, held harmless, where subsequently beneficiary himself, without objection, testified that he had at his wife's request, asked witness whether he might give such heart tablets to her, thus affording defendant substantial benefit of excluded testimony.

9. Scope and extent of cross-examination rests largely in discretion of trial court.

10. In ACTION OF CONTRACT on life insurance policy, where defendant's agent on direct examination for defendant testified that he was not its general agent, but that he had received first quarterly premium and indorsed post office money order therefor and forwarded it to defendant's general agent, court did not abuse its discretion in permitting plaintiff on cross-examination to ask witness whether he did something after receiving such money with reference to receipting for it, and what he did.

11. In ACTION OF CONTRACT on life insurance policy, where defendant pleaded defenses of fraudulent representation and fraudulent concealment, fact that defendant had paid amount of first premium and accrued costs into court under county court rule 38, entitling plaintiff in any event to a verdict for that amount, held not to prevent consideration of defendant's motion for a directed verdict, since motion will be construed to be for such verdict as defendant would be entitled to under circumstances.

12. Grounds of motion for directed verdict so general as not to point out precisely on what basis they are predicated will not be considered.

13. Supreme Court in dealing with motion for a directed verdict is concerned with tendency of evidence and not its weight.

14. Supreme Court in considering action of trial court in overruling defendant's motion for a directed verdict must take evidence in light most favorable for plaintiff, and action of trial court will be sustained if evidence fairly and reasonably tends to support verdict.

15. In ACTION OF CONTRACT on life insurance policy, burden of proving fraud and concealment alleged in answer was upon defendant, this being an affirmative defense.

16. In ACTION OF CONTRACT on life insurance policy question whether insured at time of her application had made fraudulent representations concerning disease of heart, held for jury.

17. In such action, question whether insured at time of her application had fraudulently concealed fact that she was a sufferer from varicose ulcer, held for jury.

18. Where both parties try case, and are content to have it submitted to jury on a certain theory, it is futile for either to urge in Supreme Court that such theory as to law was erroneous.

19. Intentional concealment of any material change in health of applicant for insurance between date of application and issuance of policy will avoid policy unless known to insurer.

20. In order to be fraudulent, failure to disclose material change in health of applicant for insurance between date of application and issuance of policy must be with knowledge of applicant as to its nature, for concealment must be wilful and intentional.

21. Concealment according to law of insurance is a designed and intentional withholding of any fact material to the risk, which insured ought in honesty and good faith to communicate.

22. In ACTION OF CONTRACT on life insurance policy, question whether insured fraudulently concealed change in her condition between date of application and time when premium was paid, in that she then knew she was suffering from pneumonia and failed to disclose that fact, held for jury.

23. In ACTION OF CONTRACT on life insurance policy, general exception by defendant to charge of court, "that the report of Dr. Weymouth (defendant's medical examiner) is some evidence that Mrs. Cummings (insured) did not have heart trouble and was in good health at the time of his report," held not reasonably to indicate to trial court fault found with its ruling.

24. In order that Supreme Court may consider claimed error, question must be brought before it by an appropriate exception, and no exception is appropriate which leaves trial court in ignorance of precise ground upon which it is predicated.

25. General exception to part of charge which states no ground of objection is unavailing.

26. In ACTION OF CONTRACT on life insurance policy, question whether varicose ulcer, with which insured was at one time afflicted, was a disease or illness of such a character as seriously to affect her general health and soundness, and not a mere temporary indisposition, held for the jury.

27. In ACTION OF CONTRACT on life insurance policy, instruction of court respecting varicose ulcer, held not, as claimed by defendant, to permit jury to say that insured never had varicose ulcer, but to submit question as to character of infirmity rather than its one-time existence.

ACTION OF CONTRACT on life insurance policy. Answer setting up affirmative defenses of fraudulent misrepresentations and concealment. Trial by jury at the June Term, 1927, Caledonia County, Graham, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Searles, Graves & Waterman for the defendant.

Shields & Conant for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

This is an action of contract upon a policy of life insurance written by the defendant upon the life of Nellie M. Cummings. The plaintiff is the surviving husband of the insured and the beneficiary designated in the policy. The defendant conceded the execution and delivery of the policy and the death of the insured, but defended upon the grounds: (1) That the insured at the time of the medical examination for the policy fraudulently concealed the fact that she then was and had for some years before been suffering from a disease of the heart known as chronic myocarditis. (2) That she fraudulently concealed the fact that at and before her physical examination she was suffering from a chronic varicose ulcer on her right leg. (3) That after the delivery of the...