Farrell v. American Employers' Liability Ins.

ROSS, C. J. The defendant in this court, is confined to a consideration of the same variances to which he called the attention of the county court, unless they go to the right of the action. The county court did not determine, and. could commit error in regard to no other variances. It. there claimed : First. That a variance existed between the consideration set forth in the declaration, and the consideration in the policy. The consideration alleged in the declaration is “the warranties contained in the application,” and “the order for money on the Central Vermont Railroad Company.” The policy states that the defendant issued it in consideration of the same warranties and order. There was no variance in this respect. This was setting forth, accurately, the consideration received for giving the policy. It was not varied by the subsequent provision, that the sums named in the order must be paid according to the terms of the order, to-keep the policy in force for its full term. These subsequent payments were not the consideration for making and delivering the policy. Second. A variance is claimed in regard to the promises of the defendant. The declaration correctly sets forth the promise of the defendant applicable to the state of facts declared upon. The policy contains other promises applicable to other and different states of facts which might arise, but which are not set forth nor claimed in the declaration to have arisen; nor is recovery demanded upon these other promises. The contention that this creates a legal variance between the declaration and the policy cannot be sustained. The plaintiff was obliged to set forth only the promise, or promises, in the policy upon which he sought to recover. Allen v. Goff, 13 Vt. 148; Ammel v. Noonan, 50 Vt. 402. He need set these forth only according to their legal effect,, when applied to the alleged facts oh which he bases his-right of recovery. Bates v. Leclair, 49 Vt. 229. [143] Third. It contends that the policy had seven conditions, none of which are set forth in the declaration. None of these conditions touch the plaintiff’s right of recovery except the first. That provides for notice and proof of loss; and that if the ¡¡latter is not furnished within seven months from the date of the?accident, all claims based thereon shall be forfeited to the company. The declaration alleges that these proofs were furnished as required by this condition. The other six conditions and agreements are collateral to-the defendant’s undertaking and to the plaintiff’s right of recovery, and need not be set forth in the declaration. Cooledge v. Continental Ins. Co., 67 Vt. 14. The county court correctly overruled these objections to the admission of the policy in evidence. There is a provision in the policy “That the payments specified in the order, are premiums, for consecutive periods of two, two, three and five months, and which shall apply only to its corresponding insurance period. In case the insured shall fail to pay, or leave in the hands of the paymaster, the installments of premium as agreed in said order, this contract shall be void.” The order is dated July 1, 1893, and is for the payment of $3.60 that month and for the payment of a like sum monthly, for three' succeeding months, from the wages of the insured, for three months respectively. It is alleged in the declaration, that the assured was injured while in the employ of the railroad company, and died September 25, 1893. Whether the policy was in force upon that date depended upon whether the second sum named in the order had been paid by the assured, or left in the hands of the paymaster of the railroad company for the defendant, agreeably to the order. The showing of such payment was incumbent upon the plaintiff, because, by the terms of the contract in suit, the life of the policy and the right of the plaintiff to recover depended upon the insured’s compliance with the terms of the order in regard to that payment. It [144] was a condition to be performed by the deceased, on which her right to recover depended. It must, therefore, be shown by the plaintiff. Pitt v. Berkshire Life Ins. Co., 100 Mass. 500; Caker v. The Union Mut. Life Ins. Co., 43 N. Y. 283; Atty. Gen. v. Continental Life Ins. Co., 93 N Y. 70. The court, therefore, erred in holding that the plaintiff •could recover without showing that this payment had been made, agreeably to the terms of the order, and “that if there was a default in the payment of the order it would be a matter of defence.” When the plaintiff introduced the policy, as showing her right of recovery, it gave her no such right unless she also showed that it had been continued in force by the payment of the premium falling due for the month of August, agreeably to the terms of the order. The fact that the insured continued to work for the railroad company until the accident, tended to show that he might have ■earned money enough to enable him to make the payment, but did not tend to show that he made it. The statement of the counsel for the plaintiff, in the closing argument, excepted to, was unsupported by testimony, was evidently intended to be prejudicial to the defendant, was insisted upon, and ought not to have been -made nor •allowed. Whether it .was of such a character that the verdict should be set aside on account of it, we need not and ■do not determine, inasmuch as the judgment is reversed for •other error. Judgment reversed and cause remanded.