Duval v. Metro. Life Ins. Co.

• Decision Date: 01 February 1927
• Citation: 136 A. 400
• Parties: DUVAL v. METROPOLITAN LIFE INS. CO.
• Court: New Hampshire Supreme Court

136 A. 400

DUVAL

v. METROPOLITAN LIFE INS. CO.

Supreme Court of New Hampshire. Coos.

Feb. 1, 1927.

Transferred from Superior Court, Coos County; Young, Judge.

Action by Ulric Duval against the Metropolitan Life Insurance Company on two contracts of insurance assigned to plaintiff. Plaintiff was nonsuited. Transferred upon plaintiff's exceptions to the order and to the exclusion of certain evidence. Exceptions overruled.

Assumpsit upon two contracts of insurance. The contracts were issued to one Bouffard. One promised payment in case of death and the other in case of accidental injuries. The beneficiary named in the contracts assigned her interest therein to the plaintiff.

At the close of the plaintiff's evidence, the superior court granted the defendant's motion for a nonsuit, and transferred the case upon the plaintiff's exceptions to the order and to the exclusion of certain evidence. Further facts appear in the opinion.

Ovid J. Coulombe and Crawford D. Hening, both of Berlin, for plaintiff.

Shurtleff, Oakes & Hinkley, of Lancaster (E. C. Oakes, of Lancaster, orally), for defendant.

PEASLEE, C. J. This is a suit to recover upon two insurance contracts, issued by the defendant to August Bouffard at the request of his employer, the Continental Paper & Bag Mills Corporation. The contracts were made under what is called the group insurance plan. The employer makes application to the insurer for insurance upon the lives of such of its employees as shall take advantage of the offer. The premiums are paid by the employer to the insurer, and the employer collects a part thereof from the employee, according to an agreement between them.

A group or master policy is issued to the employer, containing a full recital of the contract stipulations. The employer reports to the insurer the names of employees who have accepted the offer of insurance, and thereupon a certificate for each such employee is sent by the insurer to the employer. The certificates state that they are issued under, and subject to, the terms and conditions of the group policy.

The insurance is effective only during the term of employment. Bouffard's employment ended on June 11th, and he was drowned on June 17th. There was nothing to show that he was insured at the time of his death, unless such fact could be found from the plaintiff's offer to prove what he claimed was a waiver.

The claim was advanced in the argument here that, employment up to June 11th being shown, employment thereafter might be found by the application of the doctrine of presumed continuity; evidence to the contrary being discredited or satisfactorily explained away. It is a sufficient answer to this position that it was not taken at the trial. Over and over the plaintiff's counsel there admitted a termination of employment, and stated his case as one of waiver or reinstatement. It was this claim, and this alone, that the Presiding Justice was called upon to consider. A ground of recovery not presented at the trial will not be considered here. Gage v. Railroad, 77 N. H. 289, 296, 90 A. 855, L. R. A. 1915A, 363, and cases cited; Bjork v. Company, 79 N. H. 402, 111 A. 284, 533.

Nor is there any substantial basis for the claim now put forward. The testimony of the widow, who was the beneficiary under the policies, was that he left their employ on June 11th. She stated in her letter to the defendant that he was out of the employ. The claim of counsel at the trial was that, conceding this to be true, there was a waiver and a reinstatement by the employer. The examination of the employer's superintendent, McCarthy, by plaintiff's counsel was along the same line. The witness was asked if Bouffard did not "get back into the employ that he had left a week or so before." A denial of such fact, and of having said that such was the fact, was the basis for the offer to contradict the witness.

The plaintiff also relies upon certain discrepancies in a certificate of termination of employment, sent by the employer to the insurer, as evidence of a purpose of the employer to defraud Bouffard's beneficiaries. It is said that this and other circumstances in proof warrant the conclusion that the whole claim of termination of employment was a fraud, and that therefore continuance of employment could be found. One difficulty with this position is that the conduct relied upon is not that of a party to the cause. And, if it were, it would not have the effect of supplying deficiencies in the plaintiff's proof. Evidence of the improper conduct of a party in his cause is merely persuasive. It is not probative. Login v. Waisman, 82 N. H.——, 136 A. 134.

As counsel concedes, the burden was on the plaintiff to establish the fact of employment at the date of Bouffard's death. If the evidence does not conclusively prove non-employment, neither does it afford any basis for a finding that there was employment. Lack of conclusive proof of the defendant's case is not a substitute for affirmative proof of the plaintiff's claim.

The plaintiff called McCarthy, who denied that on June 17th he talked with Bouffard and agreed to reinstate him. Thereupon the plaintiff offered to show that McCarthy told third parties that Bouffard had been reinstated and the termination of his employment waived. The evidence was excluded, and a nonsuit was ordered.

Two claims of ground for recovery have been set up. The first is that under the above offer of proof it could be found that Bouffard was reinstated and in the employ of the Continental at the time of his death. This applies to both policies. The second relates to a special provision contained in the life policy only.

Stated in general terms, the plaintiff's main contention is that the termination of the defendant's liability on June 11th was in some way nullified by the subsequent transactions offered to be shown as above indicated.

There is no question of estoppel here No acts were done or omitted relying upon representations alleged to have been made. The claim is that there was a waiver of the termination of employment, with a consequent reinstatement of the insurance. As there was no estoppel, it is doubtful whether there is anything at all to be considered upon the claim that there was proof of waiver. A statement that one foregoes his right does not ordinarily bind him, if made without a legal consideration, and not acted upon by the adverse party. White v. Phelps, 12 N. H. 382; Rice v. Chase, 9 N. H. 178, 32 Am. Dec. 346.

While a waiver is sometimes spoken of in a loose way, which might indicate the idea that it would bind the party granting it simply upon proof that it was offered, the true rule is that, in the absence of an estoppel, it stands like any other undertaking. It must be supported by a consideration, or it is not binding upon the party making it. 6 R. C. L. 916.

In some jurisdictions the idea has been adopted that in suits against an insurance company the ordinary rules concerning the binding nature of undertakings are so far relaxed in favor of the insured and against the insurer that a gratuitous offer, made by the insurer, and not acted upon by the insured, binds the insurer. Viele v. Insurance Company, 26 Iowa, 9, 96 Am. Dec. 83; City, etc., Company v. Insurance Company, 72 Mich. 654, 40 N. W. 777, 16 Am. St. Rep. 552; 14 R. C. L. 1155.

This feature of the question does not appear to have been the subject of litigation in this state. But the often applied rule that "* * * 'the doctrine of waiver as asserted against insurance companies to avoid the strict enforcement of conditions contained in their policies, is only another name for the doctrine of estoppel'" (Daley v. Insurance Company, 81 N. H. 502, 503, 128 A. 531, 532; Appleton v. Insurance Company, 59 N. H. 541, 545 ), plainly indicates that the law here accords with the general doctrine above stated rather than with the cases just cited from other states.

In the score or more eases in which a contract was held to have been modified in this way, there is not one that suggests the idea that a waiver pure and simple could avail the insured. On the contrary, the majority of them state the doctrine of estoppel in terms. Hale v. Insurance Company, 32 N. H. 295, 64 Am. Dec. 370; Campbell v. Insurance Company, 37 N. H. 35, 72 Am. Dec. 324; Currier v. Insurance Company, 53 N. H. 538; Hadley v. Insurance Company, 55 N. H. 110; Appleton v. Insurance Company, 59 N. H. 541, 47 Am. Rep. 220; Ball v. Association, 64 N. H. 291, 9 A. 103; Perry v. Insurance Company, 67 N. H. 291, 33 A. 731, 68 Am. St. Rep. 668; Spalding v. Insurance Company, 71 N. H. 441, 52 A. 858; Dusseault v. Association, 74 N. H. 407, 68 A. 461; Wilson v. Insurance Company, 77 N. H. 344, 91 A. 913; Bachman v. Insurance Company, 78 N. H. 100, 97 A. 223; Langlois v. Association, 79 N. H. 264, 108 A. 289; Daley v. Insurance Company, 81 N. H. 502, 128 A. 531.

In the remainder of the cases there was evidence of an estoppel, upon which the decisions rest. Leach v. Insurance Company, 58 N. H. 245; Marston v. Insurance Company, 59 N. H. 92; Carr v. Insurance Company, 60 N. H. 513; Gaysville Company v. Insurance Company, 67 N. H. 457, 36 A. 367; Estes v. Insurance Company, 67 N. H. 462, 33 A. 515; Id., 67 N. H. 597, 43 A. 1075; Dunn v. Insurance Company, 69 N. H. 224, 39 A. 1075; Salvail v. Foresters, 70 N. H. 635, 50 A. 100; Seeley v. Insurance Company, 72 N. H. 49, 55 A. 425; Lally v. Insurance Company, 75 N. H. 188, 72 A. 208; Labranche v. Society, 76 N. H. 237, 81 A. 698.

So far as appears from the offer of proof, there was no consideration for the alleged waiver moving to the insurer or to or from any third party at the insurer's request or for its benefit. But, if it be assumed (as the fact very likely is) that the offer was intended to include Bouffard's promise to return to work, and if it is also assumed that this promise would furnish a consideration as against this defendant, the question arises as to the employer's...