Clarke v. Travelers' Ins. Co., 239.
| Decision Date | 05 October 1920 |
| Docket Number | No. 239.,239. |
| Citation | 111 A. 449 |
| Parties | CLARKE v. TRAVELERS' INS. CO. |
| Court | Vermont Supreme Court |
Exceptions from Chittenden County Court; Stanley C. Wilson, Judge.
Action by William B. Clarke against the Travelers' Insurance Company. Verdict and judgment" for plaintiff, and defendant excepted. Judgment affirmed.
Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.
Harry B. Bradbury and Julian S. Eaton, both of New York City, and Clarence R. White, of Burlington, for plaintiff.
Wm. W. Stickney, John G. Sargent, Homer L. Skeels, and Harlow G. Leavens, all of Ludlow, for defendant.
This is an action of assumpsit upon an insurance policy. The plaintiff had verdict and judgment below, and the case is here on the defendant's exceptions. The plaintiff's recovery included damages under the policy for weekly indemnity and the loss of a foot.
The case was submitted to the jury on the plaintiff's evidence and certain documentary evidence introduced in connection with the cross-examination of the plaintiff and his witnesses. Therefrom it appeared, among other things, that the plaintiff received an injury to one of his feet on September 27, 1915, from which blood poisoning ensued, occasioning the disability and loss of limb sued for. On May 15, 1916, the plaintiff forwarded to the defendant a "proof of loss" in which he claimed indemnity for total loss of time for the period ending February 8, 1916, and for partial loss of time thereafter, stating that it was not full claim, as he was still partially disabled. On June 16 following the defendant remitted to the plaintiff the amount of indemnity claimed "in partial settlement under the policy." A blank was inclosed for use in presenting any further claim on account of the injury, but the plaintiff made no other or further proof of claim. June 1, 1916, the plaintiff suffered a relapse, and remained in a critical condition until July 17, 1916, when the foot was amputated.
The plaintiff sought to recover the balance of indemnity under the policy for total disability from February 8, 1916, to May 15, 1916, full indemnity for total disability from that date to July 17, 1916, and the amount specifled in the policy for the loss of a foot. The principal controversy at the trial was whether the plaintiff was entitled to recover for the loss of the foot. The claims for weekly indemnity were treated as of minor consequence. The court held that there could be no recovery for additional indemnity from February 8 to May 15, but against the plaintiff's objection admitted evidence in support of the other claims and submitted them to the jury. Numerous exceptions were taken, but the errors relied upon are such that it is unnecessary to consider them seriatim. The defendant argues that it was error for the court to submit the question of damages for weekly indemnity to the jury without proof of loss, there being no evidence of waiver, and that the court erred in not directing a verdict for the defendant on the ground that the plaintiff had not shown continuous total disability from the date of the accident to the date of dismemberment. It is also urged that it was error to permit the plaintiff to introduce evidence to vary or impeach the proof of claim filed with the company, as the evidence made a claim entirely inconsistent therewith.
The defendant's contention that the plaintiff was precluded by the proof of claim filed alleging partial disability from showing that his disability was in fact total and continuous to the time of the amputation cannot be sustained. Statements therein would stand as admissions against interest to be considered by the jury in determining the degree of plaintiff's disability, but they would not be conclusive of his right of recovery. See Mellen v. U. S. Health & Accident Ins. Co., 83 Vt. 242, 248, 75 Atl. 273; Mut. Ben. L. Ins. Co. v. Newton, 89 U. S. 32, 22 L. Ed. 793; Travelers' Ins. Co. v. Melick, 65 Fed. 178, 12 C. C. A. 544, 27 L. R. A. 629. They would be open to explanation, and there, was evidence tending to show that they were not made understandingly. Nor does the evidence make a ease of estoppel. If for no other reason, the necessary element of prejudice was lacking. If the plaintiff's claim is sustained, the defendant paid less than it was liable to pay under the policy; and it does not appear that it omitted doing anything for its protection on account of the claim for partial disability.
Payment of indemnity for loss of the foot was resisted upon the additional ground stated in the motion for a directed verdict. By the terms of the policy the defendant contracted to indemnify the plaintiff for certain specified injuries. Among other things, it was stipulated that for the loss of either foot by severance at or above the ankle resulting from injury alone within 90 days from the date of the accident the defendant would pay a specified sum, or a like amount if the injury "shall independently and exclusively of other causes immediately, wholly, and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation and during that period of such continuous disability and within 200 weeks from the date of accident shall result in" such loss of either foot, and in addition weekly indemnity for total disability to the date of dismemberment. Plaintiffs occupation and duties thereof were described in the policy as "manager with office and traveling duties." It appeared in evidence that he was the proprietor and manager of a store in Burlington dealing in women's wear, and had occasion at intervals to go to New York to purchase goods. It was on one of these trips that his foot was injured. The exception to the overruling of the motion presents the single question whether there was evidence tending to show that the plaintiff's disability was of the character stipulated in the policy.
Apart from the admissions in the proof of loss, which we have seen were not in the circumstances conclusive of the plaintiff's right of recovery, the defendant contends that, on the undisputed evidence, from February 8 to June 1, 1916, the plaintiff performed many substantial acts required of him in his business, and so was not "wholly and continuously disabled and prevented from performing any and every kind of duty pertaining to his occupation," which would defeat his right of recovery. In support of this claim attention is called to testimony relating to two trips to New York between those dates in connection with the purchase of goods. The evidence relied upon is to the effect that the plaintiff went to New York to buy goods about February 4, returning about February 21; that he "made an effort" to buy goods assisted by his wife, who accompanied him to New York, and by his resident buyer there; that he went put from his hotel to look at goods, using an automobile in getting around and the elevator in going up or down; that he sat and looked at the goods shown and made selections; that when he became tired he would go back to the hotel and rest. Respecting the later trip to New York, nothing is called to our attention except the statement of plaintiff's physician in a paper put in evidence by the defendant that the plaintiff announced on May 23 that he was again going to New York on business and was absent until May 30.
Whether these facts are sufficient to conclude the plaintiff depends upon the construction that should be given the language of the policy quoted above. We have no case directly in point on this question. The defendant cites Bylow v. Union Casualty, etc., Co., 72 Vt. 325, 47...
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