Sowles v. Hartford Life Ins. Co.

• Decision Date: 23 September 1911
• Parties: SOWLES v. HARTFORD LIFE INS. CO.
• Court: Vermont Supreme Court

81 A. 98

85 Vt. 56

SOWLES

v. HARTFORD LIFE INS. CO.

Supreme Court of Vermont. Franklin.

Sept. 23, 1911.

Exceptions from Franklin County Court; Zed S. Stanton, Judge.

Action by Albert Sowles against the Hartford Life Insurance Company. A motion of defendant was overruled, and it brings exceptions. Judgment reversed, amended declaration dismissed, and cause remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Hiram P. Dee and M. H. Alexander, for plaintiff.

C. G. Austin & Sons, for defendant.

HASELTON, J. This is an action of assumpsit. The original declaration was in four counts. After the defendant had pleaded, the plaintiff filed an amended declaration, which also was in four counts. The defendant filed a motion to dismiss the amended declaration on the ground that it introduced a new cause of action, and on other grounds. This motion was overruled. The defendant excepted, and the case was passed to this court without further proceedings in the cause.

In the original declaration the first count says that by virtue of a life insurance policy, numbered 103306, issued by the defendant company in 1888, upon the life of the plaintiff, he was to pay to the company, in order to keep the policy in force, quarterly assessments and expense dues, not to exceed certain sums named, after he obtained the age of 65 years; that he reached that age in 1898; and that thereafter, in disregard of the provision of the contract of insurance just set out, the defendant had demanded and received of the plaintiff quarterly assessments, in excess of the maximum sums required by the contract, aggregating $300; and that the defendant was indebted to the plaintiff in that sum as for so much money had and received. The second count in the original declaration is like the first except that it declares as for money had and received for like overpayments to the amount of $300 exacted and received of the plaintiff after he became 65 years of age, under another policy, namely, policy numbered 103665. The third count in the original declaration is like the first, except that it declares as for money had and received for the sum of $900 exacted and received by the defendant from the plaintiff after he became 65 years of age, under still another policy, namely, policy numbered 108816. The fourth count in the original declaration is simply the common count for money had and received, and declares for the sum of $1,500, which is the aggregate of the sums declared for in the three preceding counts. It is obvious that this count was joined with the others merely as a matter of customary precaution, and that it was not intended by the pleader to state a further cause of action.

The first count of the amended declaration alleges the contract of insurance, policy numbered 103306, between the plaintiff and the defendant, entered into in 1888, and sets out that the contract provided for assessments for the purpose of forming a mortuary fund and for the creation of a safety fund, which assessments were to be levied upon the plaintiff and upon all other members of the company holding policies similar to that held by the plaintiff; that the assessments were to be made according to a table of graduated ratios; that the plaintiff at the time of the contract was 54 years old; that the money paid to the defendant for a safety fund was to be deposited with a certain security company as trustee to be invested by the security company in government bonds, and that the security company was, on conditions the fulfillment of which is alleged, to pay over to the defendant company, at intervals, the income on such bonds, which income the defendant was to divide among policy holders of the class to which the plaintiff belonged; and that it was agreed that, whenever the safety fund should amount to $1,000,000 all subsequent receipts therefor should be divided among policy holders of the class to which the plaintiff belonged for the payment of future dues and assessments. The count further alleges that the defendant did not at any time after the date of the...