Billings v. Metro. Life Ins. Co.

• Citation: 70 Vt. 477,41 A. 516
• Court: Vermont Supreme Court
• Decision Date: 25 March 1898
• Parties: BILLINGS v. METROPOLITAN LIFE INS. CO.

41 A. 516

70 Vt. 477

BILLINGS

v. METROPOLITAN LIFE INS. CO.

Supreme Court of Vermont. Windsor.

March 25, 1898.

Exceptions from Windsor county court; Start, Judge.

Assumpsit by Louise E. W. Billings against the Metropolitan Life Insurance Company. Plea, not guilty, and notice. Verdict and judgment for plaintiff, and defendant excepted. Judgment affirmed.

Butler & Maloney and W. W. Stickney. for plaintiff.

John De Witt Peltz and Dillingham, Huse & Howland, for defendant.

THOMPSON, J. 1. The plaintiff testified, without objection, that her husband, the insured, was in sound health at the time he took out the policy of life insurance in question. Thereupon counsel for the defendant interrupted the witness, and insisted that she could only testify to "his appearance of health." The witness was then asked to describe the physical appearance of the insured in May, 1894, stating everything she could recollect, and replied, in substance, that he was in sound health, and that she did not know of anything else she could say; that he appeared to be in sound health. After the answer was given, the defendant took, and was allowed, an exception to the expression "sound health," used therein. This was no more than saying that he appeared perfectly well, and must have been so understood by the court and jury. This was permissible. This exception cannot be sustained. Knight v. Smythe, 57 Vt. 529; 1 Greenl. Ev. (12th Ed.) § 440a; Rawls v. Insurance Co., 27 N. Y. 282.

2. It was not error to exclude the answers to questions 5 to 12 and 14 to 17 in the deposition of Dr. Constans, introduced in evidence by the defendant, as they related to his statements in an affidavit made by him for the defendant, and which was not admissible in evidence against the plaintiff. The deponent was permitted to refresh his memory by examining the affidavit. While this may have been permissible, it did not give the defendant the right to inject the affidavit into the deposition under the guise of refreshing the deponent's recollection.

3. The deposition of Dr. A. V. Lyon was introduced in evidence by the defendant. In her rebuttal, the plaintiff, subject to the defendant's exception, was permitted to read in evidence a letter written and signed by this deponent, which tended to contradict his testimony in respect to material matters. It is now urged by the defendant that this was error, because the deponent's attention was not called to the letter, although he was cross-examined on other points by the plaintiff. It is well settled in this state that a witness whose testimony is given on trial by deposition may be impeached by proof of declarations made by him inconsistent with his testimony, without first calling his attention to them. Downer v. Norton, 19 Vt. 338; Robinson v. Hutchinson, 31 Vt 443. This letter, however, had no probative force for either party, except as impeaching the credibility of the witness Lyon. Hence this exception is not well taken.

4. The defendant contends that its motion to direct a verdict should have prevailed on the ground that the insured was not in sound health at the date of the policy, and the condition of the policy in this respect was broken, and the policy was for that reason void. The policy, among other conditions, provided that no obligation was assumed by the defendant under it unless upon its date the insured was in sound health. It did not appear by uncontradicted evidence that the insured was not in sound health at the date of the policy. The evidence on behalf of the plaintiff tended to prove that he was in sound health at that date. If it can be said that the evidence of Dr. Constans supported the contention of the defendant, which is a construction of it most favorable to the defendant, an issue of fact was raised which was for the jury to determine. Grattan v. Insurance Co., 92 N. Y. 274. No question is made but that this issue was submitted to the jury under proper instructions by the trial court, and the jury found by special verdict that the insured was in sound health at the date of the policy. This motion of the defendant was properly denied.

5. By the terms of the application signed by the plaintiff and her husband, the insured, it was agreed and warranted by them that the answers and statements contained therein, and those made to the medical examiner, should be the basis and become part of the contract of insurance; that they were full and true, and that any untrue answers, any suppression or concealment of facts in any of the answers, should render the policy null and void. On trial, the defendant disavowed any claim on its part to defeat the policy on the ground of fraud, and in respect to matters in the application which it claimed to be untrue relied upon said warranty therein contained. The application contained, among others, the following questions and answers: "Q. Have you ever had bronchitis? Answer. No." "Q. 3. Give full particulars of any illness you may have had since childhood, and name of medical attendant or attendants. A. Measles, 8 years ago. Dr. Fox." "Q. 6A. Name and residence of your usual medical attendant A. Have none. B. When and for what have his services been required? A. * * * Q. 7. Have you consulted any other physician? If so, when, and for what? A. See No. 3." The defendant claimed in its pleadings and upon trial that before the application the insured had had bronchitis, and illnesses other than measles, and that he had consulted and been treated by physicians other than Dr. Fox, and that the answers to the question respecting bronchitis and to questions 3, 6, and 7 were untrue, and on this ground also moved the court below to direct a verdict for it, and excepted to the denial of this motion. The date of the application was May 15, 1894, and the date of the policy was May 31, 1894. The testimony of Dr. Constans tended to show that he, at his office, prescribed for the insured ia May, 1893, for "gastric trouble (acute gastritis)," and in November, 1893, "for bronchial cold (acute bronchial trouble at that time; a slight cold)"; that the gastric trouble in May, 1893, was not of a serious nature, but only a slight indisposition; that the term "acute bronchitis" means an ordinary cold in the chest, and that the bronchial cold for which he prescribed for the insured in November, 1893, was an ordinary cold, not of a serious nature, and such as a person might ordinarily have, and get rid of easily. The testimony of Dr. A. V. Lyon, introduced by the defendant, tended to show that in May and June, 1892, he treated the insured for a grip cold and its results, and in August, 1892, for a cold with hoarseness, but that he was not sick in bed at any of the dates mentioned. The testimony of Dr. Fox, a witness produced by the defendant, tended to prove that he attended the insured in June and July, 1885, when he found him suffering from measles, which had developed an acute bronchitis; and that acute bronchitis, more or less pronounced, usually accompanies the measles. The testimony of Mary A. Billings, a witness introduced by the plaintiff, tended to show that when a boy between 14 and 15 years old, and living at home, and prior to May, 1894, the insured was sick a few days, but sick in bed only the first day, and during this sickness was visited once or twice by a Dr. Crowley. This is substantially the evidence on which defendant relies in support of this motion. The evidence on the part of the plaintiff tended to prove that it was a misnomer to call an ordinary cold, or a grip cold, or the so-called acute bronchitis said to accompany measles, bronchitis; that bronchitis, as known to the medical profession, was a different disease from any of the ailments for which Drs. Constans, Lyons, and Fox claimed to have treated the insured; that the acute bronchitis described by Dr. Fox was a part of the measles, and an ordinary accompaniment thereof; that, with the exception of the measles, the ailments for which it was claimed the insured had been treated prior to the date of the policy were not diseases nor illness. This clearly...