Bachman v. Travelers' Ins. Co.

• Decision Date: 04 January 1916
• Docket Number: 78 N. H. 100
• Citation: 97 A. 223
• Parties: BACHMAN v. TRAVELERS' INS. CO.
• Court: New Hampshire Supreme Court

78 N. H. 100

97 A. 223

BACHMAN

v. TRAVELERS' INS. CO.

Supreme Court of New Hampshire. Hillsborough.

Jan. 4, 1916.

Transferred from Superior Court, Hillsborough County; Pike, Judge.

Action by Ralph O. Bachruan against the Travelers' Insurance Company. Defendant's motions for nonsuit and directed verdict and requests for instruction were denied, and defendant excepts. Transferred from the superior court. Exceptions overruled.

Assumpsit on an accident insurance policy issued to the plaintiff. Trial by jury and verdict for the plaintiff.

The policy provided for a payment of $50 a week during total disability and $25 a week for twenty-six weeks partial disability, and that proofs of claims must be furnished at the end of each thirteen weeks. The verdict is for $50 a week from the date of the accident to the date of the writ, less the sum already paid.

The plaintiff was a traveling salesman for wholesale druggists' supplies, well versed in the details of the business, capable of computing the cost of desired compounds, and possessing generally the traits essential to a successful prosecution of his vocation. He received a severe injury to his head on June 6, 1912, and was admittedly totally incapacitated for 9 weeks. Thereafter he was able to go about, and attempted to resume his occupation. Before this he had been employed at a salary of $200 a month, but afterwards he was paid a commission on the orders which he sent in. Some of these orders he took when he called upon customers, and some were sent to him by mail. For services so performed up to about February, 1913, he received $280. At that time he was employed by another firm on a salary, but was discharged in about 2 months, being paid $550. He has done no work as a salesman since.

There was evidence tending to show that after the accident the plaintiff lost all his agreeable traits of character, his knowledge of values, and his capacity to compute costs; that he was subject to epileptic attacks; that he was crazy; that his attempts to work made him worse; and that his condition had not improved, but rather the contrary.

The policy was solicited and delivered by one Dumbleton, whose name appeared on it as the defendant's agent, and to whom the plaintiff paid the premiums. The plaintiff filed his first thirteen weeks' proof for nine weeks total and four weeks partial disability. His claim at the trial was continuous total disability. In the opening counsel stated that the proof was made for partial loss after nine weeks because Dumbleton told the plaintiff that he could recover only for that after he was out of the house. The claim was advanced that Dumbleton was the agent of the defendant, and that it was chargeable with his representations in this respect. After some discussion the court ruled that Dumbleton was not an agent for this purpose, but that the plaintiff might show how he was advised by Dumbleton in explanation of why the claim was made for partial disability only. It was found that the offer of proof was made in good faith', and that the trial was not thereby rendered unfair. The defendant excepted to the offer of proof and to the admission of the evidence as limited.

September 30, 1912, the plaintiff received from the defendant through its adjuster $650. The defendant claimed this sum was paid in full settlement of all liability for the injury, and it put in evidence as "final proof," a draft which recited a satisfaction in full, and a formal release, all signed or indorsed by the plaintiff.

The plaintiff's evidence tended to show that he was incapable of doing business on September 30th; that he was about to go to Pennsylvania, under physicians' orders, to see if a protracted rest in the country would help him; that the amount paid him was only the $550 admittedly due for the first thirteen weeks' period, and $100 advanced on account of the next, which was substantially all then accrued; that the adjuster represented that the payment was on account, and deceived the plaintiff as to the contents of the several documents. Shortly thereafter the defendant's general agent wrote the plaintiff that his policy would not be continued, and that, "if the risk is presented a year hence, they should have information as to the present condition and history of any trouble from the injury subsequent to the payment of the claim to you recently." The agent testified that he intended this letter to give the plaintiff to understand that his claim had been compromised, and that there was no further liability under the policy. The plaintiff understood the letter as the agent intended it to be understood. After the receipt of this letter the plaintiff had no communication with the defendant until December, 1913. The defendant claimed that the plaintiff well understood that his claim was settled, and that the plan to prosecute it originated at a much later time. Subject to exception, the plaintiff was allowed to show that he complained to Dumbleton about the defendant's assertions soon after receiving the agent's letter, and that he declared his intention to sue the defendant as soon as his case against the railroad was finished. There were also exceptions to certain opinion evidence which are stated in the opinion.

The defendant's motions for a nonsuit and a directed verdict and its requests for certain instructions to the jury (the substance of which are stated in the opinion) were all denied subject to exception.

Taggart, Burroughs, Wyman & McLane, of Manchester, for plaintiff. Branch & Branch, of Manchester, and Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

PEASLEE, J. The main issues of fact between the parties appear to have been whether certain releases signed by the plaintiff were procured through the fraud of the defendant's adjuster, or while the plaintiff was mentally incapacitated, and the extent of his disability. The exceptions relate to the admission of evidence, the denial of a nonsuit, and instructions to the jury.

I. It appeared that the insurance was solicited, and the policy delivered by one Dumbleton, who collected the premiums, and whose name as agent appeared upon the back of the policy. Plaintiff's counsel claimed in opening that these facts made Dumbleton the defendant's agent, so that his statements as to liability made to the plaintiff after the injury would bind the defendant. The court ruled that this position was not well taken, but that the statements were admissible on other grounds. Later Dumbleton testified subject to exception that before the plaintiff filed his first proof of loss witness explained to him that as soon as he was able to be out of the house his disability under the policy became partial only, that the plaintiff complained to the witness that the company had not paid as it should have done, whereupon the witness called up the defendant's adjuster and arranged for an interview, and that shortly after the plaintiff learned that the defendant claimed it had settled with him fully he told the witness that he proposed to proceed against the company as soon as his suit against the railroad was disposed of.

The claim made in the opening was the not unusual one of counsel urging a view of the law which is not sustained by the court. The finding that this was done in good faith and that the trial was not thereby rendered unfair has a sufficient basis in fact and in reason, and is therefore controling here. Burnham v. Stillings, 76 N. H. 122, 129, 79 Atl. 987.

The evidence that Dumbleton told the plaintiff what partial disability meant and that the plaintiff acted accordingly was a reasonable explanation of the discrepancy between the signed proof and the claim made at the trial. In the effort to show that the proof was executed as it was because of an erroneous...