Frank H. Kimball v. New York Life Insurance Co.
| Decision Date | 15 January 1920 |
| Citation | 108 A. 921,94 Vt. 100 |
| Parties | FRANK H. KIMBALL v. NEW YORK LIFE INSURANCE COMPANY |
| Court | Vermont Supreme Court |
November Term, 1919.
ACTION OF CONTRACT on a life insurance policy. Heard by the Court at the March Term, 1919, Chittenden County, Fish, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed, and cause remanded
James M. McIntosh and Theo. E. Hopkins for the defendant.
Present WATSON, C. J., POWERS, TAYLOR, MILES and SLACK, JJ.
This action is brought to recover upon an insurance policy. The case was tried by the court at the March Term of the Chittenden county court, 1919. Upon the trial the defendant admitted the execution of the policy and its delivery, the death of the insured, and that proof of the same was made according to the terms of the policy and the rules and regulations of the company; but objected to the admission of the indorsement upon the policy, which extended the life of the policy beyond the death of the insured. The plaintiff then produced evidence of its execution and the same was received without objection. The defendant then offered to show that the indorsement extended the life of the policy beyond the date to which the insured was entitled under the terms of the policy, and that in fact the policy had expired at the time of the death of the insured, and was at that time not in force. The offer was excluded subject to the defendant's exception, and judgment was rendered for the plaintiff to recover of the defendant $ 1,765.18 damages and costs.
With the concessions made upon the trial, all that was necessary for the plaintiff to prove in order to entitle him to recover was that the policy was in force at the time of the death of the insured. To establish this fact the plaintiff relies wholly upon the indorsement, and while he does not deny that the offered proof would defeat his right to recover, if received and believed, he contends that it is not admissible because it was offered in cross-examination, and that no error was committed by the court in excluding it at that time.
The case clearly shows that the excluded evidence was offered not only as cross-examination, but also as a matter of right to contradict the force of the indorsement and to show the character of the extended insurance to which the policy was in fact entitled. But whether it was so offered is of no consequence. The course of the trial was such as fairly to show that the counsel and court undertook to get at the matter in an informal way without regard to the pleadings or regular course of procedure, so as to send the case to the Supreme Court on the merits alone. They treated the case as though the pleadings covered any phase of it that might arise, and the court sent up the question of the admissibility of the evidence offered and nothing else.
The plaintiff also contends that the...
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Fulton v. Kansas City Life Ins. Co.
... ... 78 MARY C. FULTON, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, APPELLANT Court of Appeals of Missouri, Kansas City January 27, ... of estoppel. Kimball v. New York Life Ins. Co., 94 ... Vt. 100, 108 A. 921; Duncan v ... ...
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Frank H. Kimball v. New York Life Insurance Co.
...whereupon, this suit was brought. After we held that the defendant had the right to correct any error it made in the computation (see 94 Vt. 100, 108 A. 921) plaintiff made the tender is the basis of his motion. It is contended that defendant held the policy as a mere pledge to secure the p......
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Kimball v. New York Life Insurance Co.
...means the rated-up age attained, and not the actual age attained. The plaintiff also invokes the doctrine of estoppel. We held in 94 Vt. 100, 108 A. 921, that the indorsement on the policy was in effect only an admission, and it must be so treated in considering this question. If for no oth......