John Spaulding, Admr. v. Mutual Life Insurance Company of New York
| Decision Date | 03 November 1920 |
| Parties | JOHN SPAULDING, ADMR. ET AL. v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK |
| Court | Vermont Supreme Court |
May Term, 1920.
ACTION OF CONTRACT on a life insurance policy. Heard by Court on defendant's demurrer to plaintiffs' replication to defendant's answer at the September Term, 1919 Washington County, Butler, J., presiding. The demurrer was sustained, the replication adjudged insufficient, and, on defendant's motion for judgment, judgment in chief for the plaintiff for the sum only tendered into court by the defendant, and for the defendant to recover its costs. The plaintiffs excepted. The opinion states the case.
The answer is adjudged insufficient, the judgment is reversed with costs to the plaintiff, and the cause is remanded with leave to the defendant to replead.
John W. Gordon for the plaintiffs.
Theriault & Hunt for the defendant.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
This is a suit upon a policy of insurance upon the life of Orvie M. Jones, and is one of two policies for the sum of $ 5,000 each, numbered respectively 2,171,545, and 2,171,547. Both policies were issued August 10, 1914, and were alike when issued; but on September 9, 1914, number 2,171,547, the policy now in suit, was changed by making Jennie L. Jones wife of the insured, sole beneficiary in place of herself and the children of the insured, as the policy was originally written.
The defendant pleaded in both actions that certain answers in the application, material to the risk and upon which the defendant relied in issuing the policy declared upon, were false, and that the insured well knew that they were not true, and that he made them with intent to deceive and defraud the defendant. To this answer the plaintiff replied, and issue was thereupon joined. After issue was joined the suit on policy numbered 2,171,545 was tried by jury, and as a result of that trial a verdict was rendered for the plaintiff to recover the full amount of that policy, and judgment was rendered thereon and for the plaintiff in that suit to recover his costs. The case was taken to this Court, where the judgment was reversed, and judgment was rendered for the plaintiff to recover only $ 489.85, a sum tendered into court by the defendant, being the amount of the premiums paid by the insured upon that policy, and interest on the same to the date of the tender, with costs to the defendant. Ante p. 42.
After the final rendition of that judgment it was pleaded in bar of this action as an estoppel. To this answer the plaintiff replied denying that the cause of action in that suit was the same as the cause of action in this, and that both policies were issued upon the same application, and averring that those answers in the application which the defendant claims to have been false were made under the instruction and by the advice of the defendant's medical examiner, upon which the insured relied in making them, and that he understood they were correct when he made them.
To this replication the defendant demurred, and also filed a motion for judgment, on the ground that the replication was manifestly false, in that it denied that both policies were issued upon the same application. The court below sustained the demurrer as to the replication and rendered judgment for the plaintiff for only the sum tendered into court by the defendant and for the defendant to recover its costs. This was error, and the exception of the plaintiff to this action of the court was well taken.
At whatever stage of the pleadings a demurrer is taken it relates back through the whole record and attaches to the first substantial defect in the pleadings, on whichever side it may have occurred. Lee v. Follensby & Peck, 83 Vt. 35, 74 A. 327, 138 A. S. R. 1061; Currier v. King, 81 Vt. 285, 69 A. 873; Dunlevy v. Fenton, 80 Vt. 505, 68 A. 651 130 A. S. R. 1009. On demurrer to a subsequent pleading, it is the duty of the court to look to and adjudicate upon all the prior pleadings in the case (Dunklee v. Goodenough, 65 Vt. 257, 264, 26 A. 988), and judgment should be given against the party whose pleading is found first to be defective. ...
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