Patterson's Adm'r v. Modern Woodmen of America
| Decision Date | 11 October 1915 |
| Parties | PATTERSON'S ADM'R v. MODERN WOODMEN OF AMERICA. |
| Court | Vermont Supreme Court |
Exceptions from Rutland County Court; Willard W. Miles, Judge.
Action by Charles E. Novak, administrator of Charles C. Patterson, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings exceptions. Affirmed.
Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.
T. W. Moloney and E. H. O'Brien, both of Rutland, for plaintiff. Marvelle C. Webber, of Rutland, for defendant.
TAYLOR, J. Charles C. Patterson died intestate April 22, 1912. The plaintiff, his administrator, sues to recover for the benefit of Sarah L. Patterson, intestate's widow, a death benefit of $2,000 under a benefit certificate issued by the defendant to intestate in his lifetime, in which said Sarah L. is named as beneficiary. The original declaration is in assumpsit, and charges in substance that, the defendant being indebted to the plaintiff as administrator of the estate of Charles C. Patterson in the sum of $2,000 for the benefit of Sarah L. Patterson, the beneficiary named in the policy hereinafter mentioned, by reason of the defendant's having become the insurer of the life of the said Charles 0. Patterson by its certain policy of insurance issued to the said Charles C. Patterson in his lifetime, and by reason of the death of the said Charles C. while said policy was in full force and effect, then and there, in consideration thereof, promised the plaintiff as such administrator to pay to the plaintiff, for the benefit of Sarah L. Patterson, the beneficiary named in said policy, said sum on demand, yet, though often requested, the defendant has not paid the same nor any part thereof, but neglects and refuses so to do, all of which is to the damage of the plaintiff as such administrator, for the benefit of Sarah L. Patterson, beneficiary as aforesaid, etc. The specification annexed to the declaration conforms to the requirements of P. S. 1504, and gives notice that plaintiff will seek to recover in this action—
"upon a certain policy of insurance issued by the defendant, and whereby the defendant insured the life of the said Charles C. Patterson, which said policy of insurance is numbered 1,407,402, and is dated on the 30th day of December, 1911."
After reciting in detail the issuance of the original policy, bearing the same number, on June 3, 1907, and its subsequent surrender, accompanied by application for change of beneficiary, and the issuance of the policy on which the suit is brought in lieu of the original, the specification continues:
"Whereby the defendant promised to pay to the executors or administrators of the said Charles C. Patterson, for the benefit of Sarah L. Patterson, said beneficiary named in said policy, the sum of $2,000 upon the decease of the said Charles C. Patterson."
Then follows notice of the death of said Patterson and of the item of the policy upon which the claim is made. At the September term, 1913, defendant prayed oyer of the instrument, and the plaintiff filed the benefit certificate involved in this case, which proved to be a sealed instrument. The plaintiff had leave to file an amended declaration, and the cause was continued to the next term of court. Within the time allowed plaintiff filed, as an amendment of the declaration, a special count in covenant upon the instrument. Thereupon defendant moved to dismiss the count in covenant on the ground that it stated a different cause of action from that set out in the original declaration. The motion was heard at the March term, 1914, and, being overruled, the defendant excepted. The defendant then moved the court to pass the cause to this court before trial, which was denied, and the defendant excepted. Both exceptions were allowed by the court and ordered to lie. Defendant was given time in which to plead, and filed several pleas to the merits. The cause was tried by jury with verdict and judgment for the plaintiff, and defendant reserved exceptions.
The first question presented relates to the declaration. The defendant insists that the court erred in overruling its motion to dismiss the count in covenant. Plaintiff makes no question as to whether the order of the court disposing of the exception would avail to preserve the question after the defendant pleaded and went to trial on the merits. Since the parties treat the question as properly here, we have thought best to consider it, though for reasons stated in Citizens' Savings Bank & Trust Co. v. Northfield Trust Co., 89 Vt. 65, 94 Atl. 302, where a similar question arose on an overruled demurrer, if the question were raised, we should be forced to hold that defendant waived the exception by joining issue on the facts and going to trial thereon. The reasons for the rule as to overruled demurrers apply with equal force to motions addressed to the pleadings. Preliminary questions of law are to be disposed of before the trial of issues of fact is brought on. To that end the statute allows the passing of causes to this court before final judgment. Thus important questions of law arising before issue is joined to the jury may be disposed of before the expense of a trial is incurred. It is pretty safe to say that the trial court will make a wise use of its discretion in this behalf. The defeated party is not made to suffer in any of his substantial rights, if the court denies his motion to pass the cause to this court before trial; for, if a motion in arrest of judgment, or some other appropriate action, will not raise the question, he has lost only a technical advantage. Besides, he has only to stand by the issue of law that he has thus raised to secure a review here.
The power of the court to permit the amendment challenged by the motion depends upon the construction to be given to No. 91, Acts of 1912. It is provided in one section of that act that counts in assumpsit, debt, and covenant for the same cause of action may be joined in the same declaration. The right to join these different forms of actions on contract was conferred by No. 84, Acts of 1910, which this section amends, but the earlier act conferred no express power to amend from one form to another after suit. Provision for this is found in the first section of the later act which reads:
"In an action on contract brought to the county court, when the original writ contains a declaration in the common counts only, the court in its discretion * * * may after the plaintiff has filed his specifications, and it appears therefrom that he cannot recover under his original declaration, permit him to add special counts in assumpsit, debt or covenant for the same cause of action shown by his specifications," etc.
Defendant claims that plaintiff could not amend by filing a count in covenant for the same cause of action, because, it says, the original declaration is not "in the common counts only"; that while it is a count in assumpsit, it is a general count, provided by a statute applying to a certain class of cases; in short that the right to amend given by this act is confined to cases in which the declaration contains only the counts previously denominated as common counts. It is possible that the section in question is capable of such a construction, but it is altogether too narrow a view to take of this remedial statute. The amendment allowed is plainly within the spirit, if not the letter, of the act. P. S. 1504, calls such a count a general count in assumpsit. The original act providing for simplified pleadings in actions on insurance policies made "the general counts in assumpsit" a sufficient declaration. No. 121, Acts of 1896. In construing that statute this court held, in Wertheim, Adm'x, v. Fidelity & Casualty Co., 72 Vt. 326, 47 Atl. 1071, that the general counts in assumpsit theretofore existing did not contain a count appropriate to an action on an insurance policy; but said:
"There is no question but that under a general count in assumpsit a recovery may be had upon an insurance policy, but it must be a general count declaring upon an insurance policy."
In the subsequent revision of the statutes the section was made to conform to this holding by using the language "in a general count in assumpsit." The construction given to the act of 1896 in Wertheim v. Fidelity & Casualty Co. required, in order to recover thereunder upon an insurance policy, that there should be a common count in the declaration declaring in terms upon the contract. Since that decision the general count on an insurance policy has been commonly regarded as of the same character as the so-called "common counts," and we think it is fairly within the contemplation of the term as used in the statute in question.
Does the amended count declare for the same cause of action? If so, the amendment was properly allowed. The original count was appropriately framed as a general count declaring upon an insurance policy and to it was annexed the specification required by P. S. 1504. But for objections to be noted later it was appropriately framed with refer ence to the cause of action declared upon in the amended count. See Wertheim, Adm'x, v. Fidelity & Casualty Co., 72 Vt. 326, 47 Atl. 1071. The specification, though referring to it as an insurance policy, describes the certificate in question by number and date, and contains other descriptive matter which makes certain the identity of the contract therein declared upon with that specially set out in the amended count of the declaration. If this were not enough, when the defendant asked and was granted oyer, the certificate became part of the original declaration, which makes certain to every intent the identity of the contract upon which both counts are based. See Morrill's Adm'x v. Catholic Order of Forresters, 79 Vt. 479, 486, 65 Atl. 526; Story v. Kimball, 6 Vt. 541. Nor is there any room for doubt as to the identity of causes of action.
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