Bickford v. Travelers Ins. , 67 Vt. 418 ( 1895 )

TAFT, J.

I, The first question presented is, whether the insurance ticket was admissible in evidence.

a. The first objection was that it “was clearly inadmissible until some evidence had been offered tending to show its execution, and issuing of said exhibit by said defendant.” The plaintiff was not inquired to prove the execution of the ticket, as the defendant had filed no notice that he should deny it. County Court Rule No. 12. But it is urged that, in order to make the ticket admissible, some evidence oug'ht to be given tending to show its issuing and delivery. The possession of the ticket was prima facie evidence, presumptive proof, and therefore evidence tending to show that the ticket had been legally issued and delivered.

b. The other objection made to the ticket as evidence was “that no recovery could be had upon the general counts, by reason of the provisions contained in the contract as expressed in said exhibit.” It is argued that the declaration is upon an absolute contract, while the one in proof is conditional. The objection was not that the ticket was inadmissible because the proof varied from the declaration, but that for the reason no recovery could be had under the general counts. This does not raise the question of variance between the proof and declaration, but simply whether a recovery can be had under the genei’al counts upon a conditional contract. The fact that a contract is conditional is no reason why a recovery under the common counts cannot be had, the case being otherwise made out. There is another reason why this objection is not valid. There is in the declaration a special count in indebitatus assumpsit, and the verdict is general. Conceding that no recovery can be had under the general counts, a judgment is never arrested because the declaration contains a defective count, if there is a good count in it for the same cause of action ; the verdict is deemed the finding upon the good count only, unless it otherwise appears. B. L., s. 913. It does not so appear, and the exception is not sustained.

II. “The defendant asked the court to direct a verdict for the defendant, upon the ground that no recovery could be had under the declaration as disclosed by the evidence.’'' It was not error to refuse a compliance with the request. When a party moves for a verdict he should state the precise grounds on Avhich he bases his request, or the court" may well disregard it. State v. Nulty, 57 Vt. 543. No ground was stated, and the principle stated in the case cited controls the question.

III. The next question is, Avhether the plaintiff can recover for disabling injuries after the filing of his proof. The injury occurred January 7, 1893 ; the proof Avas filed at the end of ten weeks thereafter ; the limit of time for which the plaintiff could recover Avas twenty-six consecutive weeks ; and he had, by the terms of his contract, seven months from the time of the accident to file the proofs of the duration of his disability, i. e., he had one month after the time for Avhich he could recover had expired in which to file the proof of his claim ; unless he filed his proof Avithin seven months of the time of the accident, he forfeited all claims under the contract. A fair interpretation of the contract requires us to hold that no recovery can be had for a disabling injury for any time not covered by the proofs. The insured is not required to file his proof until the twenty-six weeks for which, if the facts warrant, he can recover, have expired; he then is aware of all the facts in the case, and can make his proof and claim accordingly. There is nothing in the contract that expressly forbids making two or more proofs of claim. The precise point we decide is, that no recovery can be had for any time after the final proof of a claim has been filed; the limit of recovery in this case was one hundred and fifty dollars, and interest after the receipt of the proofs by the company,- which we consider to have been March 28, 1893, and the judgment below should have been for that sum.

IV. The remaining question is one of jurisdiction; in order to oust the county court of jurisdiction, it must affirmatively appear that the plaintiff did not bring his suit in good faith. The defendant claims that it is apparent that such is the fact, for that the plaintiff testified “I did not suppose I was entitled to anything after I told them what I would take ; made my claim.” It does not appear that this was all the ■evidence upon this point, nor that it referred to the time the .suit was begun; he may have supposed at the time he made his claim that he would not be disabled thereafter, or that he ■could not recover for any time thereafter. The plaintiff is not, as matter of law, by testifying as above stated, estopped from making the claim that he brought his suit in good faith, .and as it does not affirmatively appear that it was brought in bad faith, the court had jurisdiction, and the motion to dismiss was properly overruled. Drown v. Forrest, 63 Vt. 557.

If the plaintiff enters a remittitur of the damages, in excess of the sum which we think he was entitled to recover, as above stated, the judgment may be affirmed ; otherwise the •exception is sustained, judgment reversed, and cause remand-eel for a new trial. The plaintiff having filed in court a remittitur of the damages in excess of one hundred and fifty dollars, and interest since March 28, 1893,

Judgment is affirmed, and the defendant allowed its costs in this cozirt.