Cummings v. Conn. Gen. Life Ins. Co.
| Decision Date | 02 May 1928 |
| Citation | 142 A. 82 |
| Parties | CUMMINGS v. CONNECTICUT GENERAL LIFE INS. CO. |
| Court | Vermont Supreme Court |
[Copyrighted material omitted.]
Exceptions from Caledonia County Court; Warner A. Graham, Judge.
Action by Asa Cummings against the Connecticut General Life Insurance Company. Judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.
Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.
Shields & Conant, of St Johnsbury, for plaintiff.
Searles, Graves & Waterman, of St. Johns-bury, for defendant.
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 policy and before the payment of the first premium, until which time the policy by its terms did not take effect and become valid as a contract of insurance, the insured was suffering from double lobar pneumonia, the existence of which disease both she and the plaintiff fraudulently concealed from the defendant. The defendants paid into court the amount of the first premium received on the policy, together with interest thereon and the taxable costs then accrued, and conceded its liability to pay this amount and that the plaintiff was entitled to judgment for the sum.
In October, 1925, the insured made application to the defendant for a policy of insurance, and on the 12th day of that month she underwent a physical examination by Dr. George W. Weymouth, a medical examiner of the defendants. For some reason she did not accept the insurance, but about a year later she renewed her application, and as a result the policy in suit was issued. No new medical examination was required by the defendant. The policy is dated November 7, 1926, and was delivered to the insured on the 6th day of November. The first premium was inclosed in a letter directed to an agent of the company at Randolph, Mr. Fred Preston, dated November 13th, but mailed on November 15th. There was some dispute as to the time of day when the premium was mailed, the plaintiff claiming that it was some time before 11 o'clock in the morning and the defendant some time later than that. It was received by Mr. Preston on November 16th and by him forwarded to the general agent of the company, at Montpelier, by whom the company's receipt was issued dated November 18th. The policy contained this provision:
Some time between 1 and 3 o'clock of the afternoon of November 15th, the plaintiff caused a physician, Dr. Munsell, to be summoned to his house because the insured was sick. He arrived about 5 o'clock in the afternoon of that day and found her suffering with lobar pneumonia. He attended her again late in the afternoon of the following day and found her worse. She died at about 9:45 a. m. on November 17th.
The defendant did not raise the issue that the policy did not become effective during the lifetime of the insured, and so we do not consider it, although we do not overlook its importance.
The claim of fraudulent concealment with regard to the existence of myocarditis and a chronic varicose ulcer is based upon certain answers of the insured to certain questions asked in the application for the policy. The policy itself provides:
A copy of the application was attached to the policy, a part of it being that subscribed by the insured in her application of October 12, 1925, and a part being that of October 27, 1926.
The material questions and answers contained in the application are:
The foregoing appears in the application of October 12, 1925. In the subsequent application is the following:
The first exception briefed is to the exclusion of a question put to Dr. Leon B. Allen, the physician called as a witness by the defendant. He was asked on direct examination "whether or not she (the insured) ever asked you for heart medicine?" On objection being made the question was excluded as the case then stood unless the defendant should first establish that the insured had a disease of the heart. Defendants' counsel then said, "Well, if the court please, this would be evidence, I should think, that the woman herself knew about it." And an exception was taken. It is now claimed that the exclusion was error because the offered evidence was an admission by the insured that she had the disease. The plaintiff says that no offer was made as to what the expected testimony would be. But it is not necessary to consider this point in this connection, because the ground now relied upon as showing error was not presented to the trial court. Capital Garage Co. v. Powell, 97 Vt. 204, 210, 211, 122 A. 423; Grapes v. Willoughby, 93 Vt. 458, 461,108 A. 421; State v. Williams, 94 Vt. 423, 443, 111 A. 701; McAllister v. Benjamin, 96 Vt 475, 490, 121 A. 263; Prouty v. Pellett et al., 96 Vt 53, 58, 117 A. 373. The ground there stated was that the evidence would tend to show knowledge of her condition by the insured. And so no error appears.
The defendant then offered to show by Dr. Allen that Mrs. Cummings, and members of her family for her, had procured heart tablets from him in quantities of 100 one-fortieth grain tablets at a time, for a long period of years, and that such medicine was a heart remedy and was asked for as such by Mrs. Cummings and the plaintiff, her husband. The court excluded the offered evidence, as the case then stood, so far as it included admissions by the insured, and the defendant excepted.
This exception may profitably be considered in connection with the one next following it.
Later in the direct examination Dr. Allen was asked, "Did Mrs. Nellie Cummings ever complain to you about trouble with her heart?" This question was excluded "as the case now stands." The plaintiff says that this exception ought not to be considered because no offer was made as to what testimony the witness was expected to give, if permitted to answer (Smith v. Reynolds, 94 Vt. 28, 40, 108 A. 697; State v. Noakes, 70 Vt 247, 256, 40 A. 249; Fuller v. Valiquett, 70 Vt. 502, 503, 41 A. 579, and cases cited), but the transcript shows that it was sufficiently indicated that an affirmative answer was anticipated (Adams, v. Janes, 83 Vt. 334, 338, 75 A. 799). Again, the plaintiff argues that since the question was excluded "as the case now stands," it was the duty of counsel again to offer it and, not having done so, the exception must be treated to have been waived. Dubois v. Roby, 84 Vt. 465, 472, 80 A. 150. But the court thus ruled upon the offered evidence as tending to show the knowledge of the insured as to her condition, and at the same time ruled that the existence of the disease could not be proved by the admission of the insured as against the plaintiff. Since the evidence was offered for the latter purpose, and the exclusion was so far unconditional, the doctrine of Dubois v. Roby, supra, does not apply, and the question of its admissibility is for consideration.
By the terms of the policy the right to change the beneficiary was reserved to the insured. This being so, the beneficiary had no vested right therein, there being no facts or circumstances tending to establish an equitable interest in the proceeds of the policy. Spaulding v. Mutual Life Ins. Co., 94 Vt. 42, 49, 109 A. 22; Modern Woodmen of America v. Headle, 88 Vt. 37, 46, 90 A. 893, L. R. A. 1915A, 580. All the beneficiary had during the lifetime of the insured was a mere expectancy. McManus v. Peerless Casualty Co., 114 Me. 98, 95 A. 510, 511; Marsh v. American Legion of Honor, 149 Mass. 512, 515, 21 N. E. 1070, 4 L. R. A. 382; Langdeau v. John Hancock Mut. Life Ins. Co., 194 Mass. 56, 66, 80 N. E. 452, 18 L. R. A. (N. S.) 1190.
While it is said in Fitzgerald v. Metropolitan Life Ins. Co., 90 Vt. 291, 304, 98 A. 498, that the authorities are not agreed as to the admissibility of evidence of the admissions or declarations of the insured when the insurance is not for the benefit of the insured, it is clearly pointed out by the late Mr. Justice Taylor in Spaulding v. Mutual Life Ins. Co., supra, that the general rule of exclusion is based upon the assumption that the beneficiary has a vested interest in the policy from the time of issue. This reason does not apply where, as in this case, the interest of the beneficiary was not vested but ambulatory and an...
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