Rosman v. Travelers' Ins. Co. of Hartford, Conn.
| Decision Date | 10 February 1916 |
| Docket Number | 79. |
| Parties | ROSMAN v. TRAVELERS' INS. CO. OF HARTFORD, CONN. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Henry Duffy, Judge.
"To be officially reported."
Action by Ida B. Rosman against the Travelers' Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
David Ash, of Baltimore (Louis Hollander, of Baltimore, on the brief), for appellant.
William L. Marbury, of Baltimore (James Thomas, of Baltimore, on the brief), for appellee.
The appellant was the beneficiary named in a policy of accident insurance issued by the appellee to Samuel Rosman, her husband. In the suit by her to recover the amount for which Rosman was insured in case of death, the jury found a verdict in favor of the appellee, and from the judgment entered, this appeal was taken.
The record contains 84 exceptions to the rulings of the lower court, and, although each has been considered by us, it is not practical to discuss them separately and in detail, but they will be dealt with in the classes in which they naturally arrange themselves, and each class will be considered as a whole in discussing the principles of law applicable thereto.
Samuel Rosman was an agent of the appellee company for soliciting insurance, and on January 2, 1913, had himself insured against accidents for the total amount of $5,000, and named as the beneficiary in case of death his wife, the appellant. Provisions were made, in addition to that for loss by death for both total and partial disability of the insured, the sums payable therefor to be paid to the insured, and also for reimbursement for any hospital charges incurred because of any injuries for which indemnity under the policy was payable. The policy expressly excepted, however, from its operation death caused by suicide, sane or insane. There was also a proviso that:
"The consent of the beneficiary shall not be requisite to a surrender or assignment of this policy or to a change of beneficiary."
Samuel Rosman became ill on May 16, 1913, and died June 5th following at a hospital where he had been taken for treatment. It appears from the testimony that a physician was called in to see the sick man on May 17th, and was told by Rosman that he had eaten, the previous evening, salmon and sausages. Rosman continued to grow worse, and another physician was called into consultation; and upon his repeated denials that he had eaten or taken anything but salmon and sausages the physicians treated him for ptomaine poisoning and removed him to the Hebrew Hospital. While there, late at night, on May 28th, Rosman sent for one of his physicians and said to him:
Shortly afterward he substantially repeated the above to his other physician. On June 4th Rosman was visited by an adjuster for the appellee company, three members of a lodge to which he belonged, and his brother. Rosman said to them:
"Well, before I die I want to tell you something what I have done."
And he then dictated the following statement, which was taken down separately by the adjuster and one of the lodge members, and, after having been read to Rosman, signed by him. Both papers were substantially the same, and both were admitted in evidence. They are as follows:
There was also testimony offered and admitted that the appellee was the holder of six promissory notes delivered by Rosman to the company, purporting to have been given by policy holders for premiums due on policies sold by Rosman. The holders of the policies each testified that the notes purporting to bear their signatures had not been signed by them, but that they had paid the premiums in cash to Rosman. Rosman had also been paid by the company his commission out of the notes. One of these notes became due six days after he became ill.
A large number of the exceptions relate to the admissibility of the admissions and declarations made by Rosman as set forth in the above brief synopsis of the testimony; the theory of the appellant being that in this suit by the beneficiary they were not admissible against her, since they were not of the res gestæ. But for a settlement of this we are not concerned with whether or not they were of the res gestæ. By the terms of the policy the insured reserved to himself the right to change the beneficiary without the consent of the beneficiary. By the overwhelming weight of authority it is held that, where the rights of the beneficiary are dependent upon the will of the assured, the beneficiary acquires no vested right until the death of the insured. And this is assuredly founded upon reason; for by the contract between the insured and the insurer any right of the beneficiary before death is a mere expectancy depending upon the will and acts of the insured. Formerly the decisions drew a distinction between the policies of an ordinary life insurance and mutual or fraternal companies or organizations declaring that in an ordinary life policy the beneficiary immediately acquired a vested interest at the issuance of the policy, but that in the others he did not. An examination of the cases discloses that the reason for the distinction was based upon the lack of the right of the insured...
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