Mary L. Brown v. Vermont Mutual Fire Insurance Co.

• Decision Date: 18 February 1918
• Citation: 102 A. 1042,92 Vt. 272
• Parties: MARY L. BROWN v. VERMONT MUTUAL FIRE INSURANCE COMPANY
• Court: Vermont Supreme Court

102 A. 1042

92 Vt. 272

MARY L. BROWN v. VERMONT MUTUAL FIRE INSURANCE COMPANY

Supreme Court of Vermont

February 18, 1918

Special Term at Rutland, November, 1917.

CONTRACT upon a fire insurance policy. Answer, the general issue, with notice of special matter in defence; among other things, that plaintiff had not furnished defendant with an amended proof of loss within thirty days after notice that the proof already furnished was defective, and that therefore the policy was void. Trial by jury at the September Term 1916, Rutland County, Butler, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Judgment affirmed.

C V. Poulin for defendant.

John S. Dorsey for plaintiff.

Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES

This is an action of contract with a count in general assumpsit, on a fire insurance policy. The exceptions relied upon by the defendant in its brief, are to the admission of evidence, to a certain portion of the charge of the court and to the court's refusal to direct a verdict for the defendant. The plaintiff challenges the sufficiency of the defendant's exceptions, upon the ground that it does not appear in the exceptions nor in the transcript, that any judgment was rendered in the case or exception taken to it, and an examination of the exceptions and the transcript shows the fact to be as claimed by the plaintiff; but an examination of the docket entries, certified to the clerk of the general term, shows that on October 26, 1916, a verdict was rendered against the defendant, on November 15, 1916, judgment was entered for the plaintiff, on December 18, 1916, defendant's skeleton bill of exceptions was filed and on August 9, 1917, defendant's completed bill was filed. To these entries this Court may refer. Spaulding v. Warner, 57 Vt. 654.

From the docket entries it appears that following the judgment exceptions were noted. Within the time limited, the presiding judge signed and filed a bill of exceptions, which placed upon the record the questions of law arising at the trial. This entitled the defendant to a consideration of the questions which are properly raised. 2 R. C. L. 92, par. 68; Felt v. R. R. Co., 48 Colo. 249, 110 P. 215, 1136, 21 Ann. Cas. 379; Koehler v. Ball, 2 Kan. 160, 83 Am. Dec. 451; 3 C. J. 939, par. 827; Estabrooks v. Ins. Co., 74 Vt. 202, 52 A. 420.

The defendant makes six points in its brief, and the first one made is to testimony of the plaintiff as to the value of the property destroyed by the fire, and that point embraces six objections, to all of which no ground is stated, and the objections and exceptions taken are all as follows: "Objected to, exception by the defendant."

The defendant urges in support of these objections only that there was no evidence that the plaintiff had any special knowledge of the value of the things testified about. Such an exception goes to the competency of the witness to testify as to values, which is a preliminary question and not raised by a general objection. Brown v. Aitken, 90 Vt. 569, 99 A. 265.

The second point in the defendant's brief is as to questions to Jacob F. Bidgood, in which the defendant says it was error to admit his testimony, as it does not appear that he had any knowledge of land values in the vicinity of the property in question. The point briefed, if we treat it as properly briefed, relates to a question as to the value of the house at the time of the fire. The objection to this question was that it "assumed certain things which were not in evidence." Earlier in the witness' testimony the objection to incompetency to express an opinion as to values, now relied upon, was interposed and thereupon the examiner, without taking an answer to the question objected to, asked numerous questions for the purpose of qualifying the witness to express an opinion. The objection to competency was not renewed and the court could properly treat it as waived. The exception taken is not briefed and the question briefed is not saved.

The third point raised in the defendant's brief is based upon exception 8 of the bill of exceptions, and that exception is to the overruling of defendant's objections to questions asked the plaintiff when recalled to the witness stand after the testimony above referred to. No ground of objection was stated; but the defendant argued that it was an attempt to show negotiations for a settlement with Brockway, who had no authority to settle the matter. The question relied upon in the argument was not raised by a general objection to what Brockway, the defendant's adjuster, said concerning the loss. The only objection and exception made in this connection was as follows: "Objected to, exception by defendant." It cannot be said that such an exception sufficiently appraised the trial court of the objection that the questions permitted negotiations for a settlement to be shown and that Brockway had no authority to bind the principal.

The fourth point in the defendant's brief is to the overruling of the motion for a directed verdict and is exception 11. The point of this exception is that the plaintiff failed to furnish the defendant with an amended proof of claim within thirty days after notice by the defendant that the proof of claim already filed was not satisfactory. The fire occurred October 23, 1915 and on October 25, 1915, the defendant was notified of the fact and November 20, 1915, the defendant notified the plaintiff to send to it a proof of loss, which she did November 27, 1915 and the same was received by the defendant November 29, 1915, and on the 6th day of December, 1915, the defendant returned the proof of loss to the plaintiff with its objection and asking for a corrected proof. To this the plaintiff replied that she had given a correct proof of loss, and to this letter the defendant, on the 14th day of December, replied that it did not agree with her and asking her for a meeting at its office at Montpelier to adjust the matter. Later a meeting was had...