Bickford v. Travelers' Ins. Co.

• Decision Date: 25 May 1895
• Citation: 32 A. 230,67 Vt. 418
• Parties: BICKFORD v. TRAVELERS' INS. CO.
• Court: Vermont Supreme Court

32 A. 230

67 Vt. 418

BICKFORD

v. TRAVELERS' INS. CO.

Supreme Court of Vermont. Orleans.

May 25, 1895.

Exceptions from Orleans county court; Tyler, Judge.

Assumpsit by G. D. Biekford against the Travelers' Insurance Company. There was a judgment for plaintiff, and defendant excepts. Affirmed conditionally.

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, Connecticut, hereby insures G. D. Biekford, of Barton, Vt., for the term fixed by the coupons still attached hereto, against loss of time not exceeding 26 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 90 days, will pay the principal sum to his legal representatives, except that this ticket insures females against death only, does not insure persons under 16 or over 70 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 $3,000; that its limit of insurance uuder accident tickets is $6,000, with $30 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 $15 per week indemnity for disabling injuries; $3,000 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 their 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, Secy. J. G. Battertan, Prest." 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, 12 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 bad 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 6th 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 thereunto 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. Co. Ct. 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 $150. The court...