New Haven Trust Co., Receiver v. Doherty

We cannot regard this case as an action for damages for the misconduct or negligence of the defendants, as officers and managers of the insurance company, in having made an unlawful contract with Sherman for the investigation and settlement of the mortuary claims in question, or in having paid excessive charges for commissions and expenses for procuring such settlements, or in having improperly used the money of the mortuary fund for the payment of other than death claims. These are not the issues raised by the pleadings.

Each count of the complaint alleges that the defendants wrongfully drew a certain sum from the mortuary fund, and wrongfully failed to return it either to that fund or to the company's treasury, whereby it was wholly lost to the company.

Under their denial and special answer the defendants claimed that the sums alleged to have been drawn from the mortuary fund were in fact taken from the dividend fund; that in each case the full amount drawn was expended in the payment to the beneficiary, and of the expenses of investigation and settlement; and that the company thus received the full benefit of all the sums charged against the mortuary fund.

The only issues in the case were those of fact raised by the defendants' denial of certain paragraphs of the complaint and the plaintiff's denial of the averments of the answer.

That the balances in question had, in effect, been paid by the defendants to the expense fund, was rightly treated as a sufficient answer to the complaint charging that these balances had been wrongfully taken from a fund of the company and not returned, and had been thereby wholly lost to the company. From the record the real question between the parties seems to have been whether the balances had been actually expended in payment of the expenses of the settlements, and so in effect returned to the expense fund.

The finding sustains the defendants' claim that the money was not lost to the company but was in fact used in payment of the expenses of the settlement of mortuary claims. The transactions as found by the court were, in effect, that the differences between the amounts charged to the mortuary fund and the sums paid to the beneficiaries were returned to the expense fund and paid out by the company for expenses. The judgment must therefore stand, unless there was error in receiving the memorandum book as evidence that the balances were expended as the defendants claimed.

Whether regarded as a book of the company or as a private memorandum book of Doherty's, it was not error to admit it as evidence of the manner in which the money in question had been expended, in connection with the testimony of Doherty showing the character of the entries and that he made them at the time of the transactions referred to, unless it was rendered inadmissible from the fact that its entries contradicted those upon the regular books of the company and the sworn statements in the report to the insurance commissioner. Apart from such objection it was admissible as a memorandum of details essential to the full proof of transactions in issue, proved to have been correctly made by one of the defendants at the time of such transactions. Curtis v. Bradley, 65 Conn. 99, 114.

But the book in question was not offered for the purpose of contradicting the entries upon the regular books and records of the company that these balances had been paid to the beneficiaries. It is the plaintiff and not the defendants who claim that these entries are false, and the plaintiff's right to recover in this action depends upon the fact that these balances have not been paid to the beneficiaries as stated in the company's records. In that respect this case differs materially from the cases cited by the plaintiff.

Having alleged, as it has also proved, that the sums charged upon the records of the company to the mortuary fund, as paid to the beneficiaries, were not in fact so paid, the plaintiff alleges that the balances remaining in the defendants' hands have not been paid back to the treasury of the company, but have been wholly lost to the company, and denies the averment of the answer that these balances have been expended for the benefit of the company in the compromise of mortuary claims. However culpable or unlawful may have been the acts of the defendants in keeping the books of the company, and in making their reports to the board of directors, and to the insurance commissioner, in the manner they did, we think, under the pleadings in this case, they were rightly permitted to prove by the memorandum book, as well as by other evidence, that they had not failed to return to the company the balances in question, but had paid them to the treasury of the company in the manner claimed by them.

There is no error.

In this opinion the other judges concurred.