Volume 96 — Vermont Reports

<p>Appeal in Chancery. Bill to restrain defendant in relation to a side track constructed by plaintiff. Heard on a Special Master’s Report, at the March Term, 1921, Windsor County, Fish, Chancellor. Bill dismissed. Plaintiff appealed. The opinion states the case.</p>

<p>Indictment for murder in first degree. Plea, not guilty. Trial by Jury, March Term, 1921, Butland County, Moulton, J., presiding. Verdict, guilty of murder in the second degree. The respondent excepted. The opinion states the case.</p>

<p>Action op Contract. Plea, the general issue with notice of special defenses. Trial by jury at the December Term, 1919, Caledonia County, Fish, J., presiding. Verdict and judgment for defendants. The plaintiff excepted. The opinion states the case.</p>

<p>Life Insurance Policy — Consideration of Evidence on Defendant’s Motion for a Directed Verdict — Provisions in Premium Note Favorable to Insurance .Compa/ny May be Waived by It — What Constitutes Waiver — Question for Jury — Policy Construed Against Insurance Company — Entire Contract to be Construed Together — “Attained Age” for Continued Insurance in Policy Issued on Bated-up Basis — Practical Construction of Contract by Parties — Indorsement on Policy as An Admission — Estoppel—Circumstantial Evidence to Establish Estoppel — Cross-examination as to Effect of Reinstatement of Lapsed Policy on Application of Dividends to Extended Insurance — Cross-examination to Test Knowledge of Expert — Harmless Error — Evidence of No Similar Mistakes Inadmissible to Rebut Estoppel by Reason of Claimed Mistake — Exceptions Not Briefed.</p> <p>1. On a motion by defendant for a directed verdict, the evidence must be considered most favorably to plaintiff.</p> <p>2. A provision in a note taken by a life insurance company, covering part of an overdue premium through non-payment of which a policy had lapsed, that if the note was not paid when due it would not be effective to reinstate the policy, was for the benefit of such company and could be waived by it, notwithstanding the provisions of G. L. 5575.</p> <p>3. Evidence that the records of a life insurance company and an indorsement made by it on a policy, showed a policy in force beyond the due date of a note, given the insurance company by insured for part payment of an overdue premium the nonpayment of which had caused the policy to lapse at the time the note was delivered, and that the note was not paid when due, held to justify an inference by the jury that the insurance company had waived a provision in the note that it would be ineffective to reinstate the policy if not paid when due.</p> <p>4. A “waiver” is the voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party would otherwise enjoy.</p> <p>5. In an action on a 1-ife insurance policy, where the evidence showed that a life insurance company had knowledge of its right, under a note given by insured, to treat the policy as no longer in force by reason of non-payment of the note, and there was evidence from.which it could be inferred that such right had been waived held, that whether the insurance company had waived such right was a question for the jury.</p> <p>6. In an insurance policy, the language being that of the insurance company, all the conditions and provisions favorable to it are to be construed strictly against it.</p> <p>7. In an insurance policy, the entire contract is to be construed together for the purpose of giving force and effect to each clause.</p> <p>8. Where a policy of life insurance provided that the premiums,' loans, and surrender values thereof, were on the basis of a rated-up age of 43, which was 17 years in excess of the actual age of insured, but did not limit the provision to premiums paid before the policy lapsed, and continued insurance was included in the surrender values, the “attained age” on which, by the provisions of the policy, the continued insurance was to be computed, was the rated-up age attained by the insured at the time of the default, and not his actual age.</p> <p>9 Where a life insurance company, in the table of loan and surrender values forming part of a policy, computed the term of continued insurance, to which insured was entitled in the event of default in payment of premiums, on the basis of the rated-up age of insured at time of default, and, also, after the policy had lapsed, placed an indorsement thereon as to the term for which policy would continue in force, computed upon the same basis, and the insured received the policy and no ■ claim was made by either party that the method of computation employed was. erroneous Held, that these facts constituted a practical construction hy the parties that “attained age’’ of insured, as used in the policy in relation to continued insurance, meant his rated-up age, not the actual age attained.</p> <p>3 O. The indorsement, by a life insurance company, on a policy issued by it and lapsed for non-payment of a premium, of the term for which the policy would continued in force, is, in effect, an admission, and the beneficiary cannot invoke the doctrine of estoppel against the insurance company when it seeks to establish that such indorsement was made by mistake, where there was no competent evidence that either the beneficiary or insured had been induced by the mistake to act or refrain from action, which, is an essential element of estoppel in pais.</p> <p>11. Reliance by a beneficiary or the insured under a life insurance policy, on such an indorsement may be proved by circumstantial evidence, where it is of a character that such an inference may be fairly taken therefrom.</p> <p>12. In an action against an insurance company on a life insurance policy, where the plaintiff, who was beneficiary under the policy, claimed a waiver by the insurance company of the provisions of a premium note, which the insured failed to pay when due, that if not paid when due it would be ineffective to reinstate the policy, and a witness for the company had testified that because of default in payment of premiums the policy was not entitled to an extra dividend which had been used in computing the term of continued insurance after the default, it was proper cross-examination to inquire what would have been the effect with respect to such extra dividend, had the policy been reinstated by the premium note.</p> <p>13. A witness for an insurance company, in an action against it by the beneficiary under a policy, as an expert on the subject of the term of extended insurance on default' in payment of premiums, testified that the method used in computing the extended term of the policy in suit was based on erroneous data, and on cross-examination was permitted to testify, over objection that it was immaterial, irrelevant and incompetent, and not because improper cross-examination, as to the terms of extended insurance, excluding a policy loan from the computation. Held, that the evidence was competent and a proper method of testing his knowledge of the subject on which he had testified as an expert.</p> <p>14. In. an action on a life insurance policy, where the undisputed evidence showed that unless the insured was entitled to certain dividends, in computing the term of extended insurance after default in payment of a premium note, the policy would have expired prior to the death of insured, cross-examination of a witness for the insurance company tending to show that a cash payment made to the company at the time the premium note was given would have kept the policy in force two months, even if incompetent, was harmless when no claim was made that such further extension would have entitled the insured to the dividends necessary to keep the policy in force until his death.</p> <p>15. In an action on a life insurance policy, where the insurance company claimed a mistake had been made by it in computing the term of extended insurance to which insured was entitled on default in payment of a premium, evidence, offered by the company to rebut a claimed estoppel, that witness never knew of a similar error having been made by the company,' was inadmissible, as a person whose erroneous representations have induced another to act cannot escape liability by showing that he had never made similar erroneous representations to any one else.</p> <p>16. Exceptions saved on trial, but not briefed, will not be considered.</p>

<p>Information for statutory rape. Plea, not guilty. Trial by jury, June Term, 1921, Bennington County, Moulton, J., presiding. The respondent excepted. After the case was entered in Supreme Court, upon request of respondent, and leave therefor being granted, he filed petition for a new trial on the ground of newly discovered evidence. Heard in Supreme Court on this petition and the evidence submitted in support and opposition.</p>

<p>Sales on Commission hy Use of Lottery — Dismissal of Action on Ground of Illegality of Contract — Money from Commission Sales Meld hy Consignee as Fiduciary.</p> <p>1. Though a contract to sell merchandise upon commission authorized defendant in effecting sales to use a punch board and offer prizes, all supplied by the owner, and sales made by defendant in such manner were illegal under G. L. 7079, prohibiting lotteries, recovery could be had from defendant in an action by the owner for sales made, less commission and damages for refusal to return the goods undisposed of, the suit not being on the illegal contract, but on an implied contract to deliver money had and received to such owner’s use, and for damages for failing to return unused goods, hence it was' error for court to dismiss action on the ground that contract sued upon was illegal.</p> <p>2. Where goods were forwarded by the owner to be sold on commission, money received by the consignee from the sale of such goods, in excess of his commission, was held by him in a fiduciary capacity and belonged to ■ consignor.</p>

<p>Petition eor Partition. Motion by defendant, James C. Dunn, to dismiss for lack of valid citation. Heard by the court at the September Term, 1921, Rutland County, Willcox, J., presiding. Motion overruled. The defendant, James C. Dunn, excepts.</p> <p>The part of the citation complained of is that wherein the defendants were summoned “to appear before the county court, within and for the county of Rutland, to be held at the city of Rutland in said county, and also to notify them to cause their appearance therein to be entered with the clerk of said court on or before the expiration of forty-two days from the date hereof, then and there,” etc.</p> <p>The grounds for the motion to dismiss were: “ (a) The citation does not comply with the directions of the statutes, which require the petitionee to appear at a stated term of court; (b) that it does not comply with the rules of the court made for such proceedings.”</p>

<p>Negligence — G. L. 4709 — When Violation of 'Statute Actionable Negligence — Burden of Proof — Proximate Cause — Questions for Jury — Contributory Negligence — Bight to Assume That Driver of Approaching Automobile Will Obey the Law- — ■ Sudden Peril — Direction of Verdict:</p> <p>1. In an action for injuries to person and property in an automóbile collision, helé that there was evidence from which it could be inferred that defendant had deliberately violated G, L. 4709 by turning off the lights of his automobile and leaving it unattended in the highway after dark.</p> <p>2. The violation of a statute does not constitute actionable negligence, unless it was a proximate cause of the accident for which recovery is sought.</p> <p>3. In an action for injuries to person and property by collision with defendant’s automobile, which defendant had left standing in . the highway after dark, unattended, with its lamps not burning, plaintiff has the burden of proving that, defendant’s negligence was the proximate cause of the injuries.</p> <p>4. Proximate cause may be proved by either direct or circumstantial evidence, from which a logical inference of causal relation can be drawn.</p> <p>5. Where the evidence was such that the jury could infer therefrom that the plaintiff had been misled by the fact that the lights of defendant’s automobile were not burning until too late to avoid colliding with it, and that had they been lighted he would have sooner discovered defendant’s car and have been better able to judge whether it was stationary or in motion, it was for the jury to say whether the absence of the lights was the proximate cause of the accident, and was error to direct a verdict for defendant on the ground that his negligence had not been shown to be the proximate cause of the accident.</p> <p>6. Where the evidence showed that plaintiff when rounding a curve saw defendant’s unlighted automobile in the highway as soon as he ought to have seen it and in plenty of time to have avoided it, whether plaintiff was. negligent in erroneously assuming, until too late to avoid the collision, that the car was approaching and would turn to its right was for the jury to determine under all the circumstances.</p> <p>7. The driver of an automobile along a public highway, who sees another automobile approaching on the wrong side of the road, • . has a right to assume that it will observe the law of the road (G. L. 4705) and move over to its right so as to pass without interference, and to proceed on this assumption until he sees, or in the circumstances ought to see, that it is unwarranted.</p> <p>8. Under the evidence, helé that the plaintiff was not guilty of contributory negligence as a matter of law in not sooner discovering that defendant’s automobile was not in motion.</p> <p>9. When one without his own fault is confronted with a sudden peril, he is not held to the exercise of the same degree of care as when he has time for reflection, as the law recognizes thát a prudent man, under such circumstances, may- fail to »use the best judgment or may omit some precaution he could have taken. '</p> <p>10. What a prudent man would or might do in the same circumstances when confronted with a sudden peril is a question for the jury, and such an emergency having' been shown by the evidence, it was error to direct a verdict for the defendant on the grounds of plaintiff’s contributory negligence.</p>

<p>Appeal from the decision of the commissioners allowing the claim of Christie Peters against the estate of Eugene Poro. Complaint in the common counts. Pleas, the general issue and the statute of limitations. Replication of an agreement by the intestate within the period of the statute of limitations. Trial by jury at the September Term, 1920, Chittenden County, Butter, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion state the case.</p>

Appeal in Chancery. Bill for an accounting by defendant for money belonging to an estate, deposited in defendant bank by a person in Ms name as trustee for the individuals entitled to share in the estate. Heard on bill, answer, and findings of fact filed by the chancellor in vacation after the March Term, 1921, Washington County, Slack, chancellor.

<p>Action op Tort for negligence. Pleas, the general issue and special pleas in bar. Trial by jury at the April Term, 1921, Essex County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Trial — Findings of Fact — General Exceptions — Conclusiveness ■ of Findings — Arrest Without Warrant — Justification Under Warrant.</p> <p>1. Where the plaintiff reguested the court to make certain findings as to facts, the existence of which was expressly denied by the defendant’s testimony, refusal to comply with such reguest was warranted.</p> <p>2. A general exception to the refusal of a court to make several findings of fact as reguested is unavailing when one of the re-guests was properly refused.</p> <p>3. A general exception to a court’s findings of fact, which includes all the findings made, as “vague, indefinite, and ambiguous,” is unavailing where many of the findings are neither vague, nor indefinite, nor ambiguous.</p> <p>4. A finding by the trial court that an arrest was made while a "breach of the peace was'being committed is conclusive on exception to the Supreme Court, it being a guestion of fact.</p> <p>5. An officer is justified in arresting without a warrant a person who. is engaged in committing a breach of the peace.</p> <p>6. In an action for false imprisonment, notwithstanding there is no express finding that the plaintiff, when arrested on railroad property, was there loitering without right, this did not place him outside the law giving the defendant officer a right to arrest him without a warrant when committing a breach of the peace.</p> <p>7. A complaint and warrant good on their face afford a sufficient justification for an officer in doing what is therein commanded.</p>

<p>Ejectment — Possession—Outstanding Title.</p> <p>In an action of ejectment by an executor, where his testatrix had prior actual possession, not apparently wrongful, the defendant cannot set up an outstanding title in a stranger, unless she connects herself with that title.</p>

Trial by court, upon an agreed statement of facts, at the September Term, 1921, Chittenden County, Wilson, J., presiding. Judgment affirming the decree of the probate court. The appellants excepted. The opinion states the case.

Action ok Tort under the Federal Employers’ Liability Act for negligently exploding a railroad torpedo by reason of which plaintiff was injured. Trial by jury at the April Term, 1921, Essex County, Wilson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Taxation — Charitable Institution — Exemption from Taxation.</p> <p>An endowed hospital, holding property in trust the income of which is devoted to receiving and caring for indigent, old, and infirm patients, without pay, and an endowed home for poor and indigent orphans received and cared for by it without pay, and to which purpose its trust funds are devoted, are charitable institutions within the meaning of the provisions of G. L. 684, which provides that “real and personal estate granted, sequestered or used for public, pious or charitable uses” are exempt from taxation, and the language in the concluding clause of G. L. 687, “But the lands or buildings exclusively used for .the support of orphanages, homes or hospitals, which, without pay, receive and care for indigent, old or infirm patients or inmates shall be exempt from taxation, when such lands or buildings are located in the town in which such institutions are situated,” was not intended as a restriction to the general exemption accorded to institutions holding real and personal estate granted for charitable uses as found in G. L. 684, but applies to the subject-matter contained in the first clause of G. L. 687, which relates to lands or buildings owned or kept by a religious society; hence a hospital or'home, not so owned or kept, which is a charitable institution under G. L. 684, is not taxable, although owning lands or buildings outside of the town in which the institution is situated, and although such institution is supported in part by paying patients or inmates.</p> <p>Note: — When this case was originally argued it was assigned to Mr. Justice Miles. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Taylor.</p>

Action ok Tort for false and fraudulent representations in the sale of cattle. Plea, the general issue. Trial by jury at the September Term, 1921, Washington County, Moulton, J,, presiding. Verdict for plaintiff. Close jail certificate granted, to which defendant excepted. Motion to set aside verdict made and overruled and judgment for plaintiff. The defendant excepted. The opinion states the case.

<p>Neto Trial — Burden on Petitioner — Due Diligence in Having Exceptions Noted.</p> <p>1. On a petition for a new trial on the ground that the defendant, without his fault, has lost the benefit of exceptions taken by him during the trial to rulings admitting or excluding evidence, the burden is on him to show affirmatively both that he saved the exceptions and that the failure to note them was due to no fault on his part.</p> <p>2. On such motion, where no reporter was present at the trial, and the minutes made by the presiding judge in the nature of a summary of the proceedings did not show the exceptions claimed by the defendant, and the trial judge stated that he had no recollection of such exceptions, and the affidavits of defendant’s two attorneys, claiming that the exceptions were saved, were contradicted by the affidavits of plaintiff-and his counsel, held that the defendant had not sustained the foregoing burden of proof.</p> <p>3. At a trial where no reporter is present and no minutes are being taken by any one except the presiding judge, due diligence requires that a party, having knowledge of such facts and desiring to rely upon the minutes made by the presiding judge to show all exceptions saved during the course of the trial, should at least so inform the court.</p>

<p>Appeal in Chancery. Bill to enjoin the collection of certain tax assessments. Demurrer of defendants to plaintiff’s bills overruled pro forma, bill adjudged sufficient and taken as confessed, and decree rendered for the plaintiff, in vacation, after the September Term, 1922, Windham County, Chase, Chancellor, presiding. The defendant appealed. The disposition of the case below and the appeal were in accordance with a stipulation of the parties, which adjusted the taxes set forth in the bill on the basis of an equal division. The opinion states the facts.</p>

<p>On Defendant’s Motion for a Directed Verdict, Evidence Viewed Most Favorably to Plaintiff — Trover and Conversion — Demand — Essentials to the Release of An Attachment — Jury ■' Question — Immaterial Evidence.</p> <p>1. In determining whether defendant’s motion for a directed verdict was properly granted, the evidence must be viewed most favorably to the plaintiff.</p> <p>2. In an action of trover, a demand and refusal are only essential when the party might have delivered the property if he would, hence, where the property has been sold by the defendant, or by some other person for him, thereby making it impossible for defendant to comply with a demand if made, a demand is unnecessary.</p> <p>3. A release of an attachment on property requires the actual relinquishment of all future claim to the property and the proceeds% thereof.</p> <p>4. An arrangement whereby a deputy sheriff permitted property to be sold and the proceeds substituted in lieu of the property, would not constitute such a release as would defeat a recovery against the officer in an action of trover.</p> <p>5. Where an officer, against whom an action of trover had been brought for the conversion of a horse, claimed in defense that he had released the attachment before the property was sold, and the evidence was such as to support an inference that he had merely permitted it to be sold and received the proceeds of the sale to be substituted in lieu of the property, the question of whether the attachment had in fact been released was for the jury.</p> <p>6. Where property of plaintiff had been wrongfully attached, in an action of trover for its conversion against' the attaching officer, it was immaterial that plaintiff’s mother had consented to the sale of the property, in the absence of evidence tending to show that she represented her son.</p>

<p>Appeal from the action of the commissioners on the estate of Theodore N. Vail in disallowing a claim presented by the plaintiff on a stock subscription contract. Trial by the court at the December Term, 1921, Caledonia County, - Willcox, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the ease.</p> <p>Interest can only be allowed where there is a contract, express or implied, so to do. Newell v. Keith, 11 Vt. 214; Raymond v. Isham, 8 Vt. 258; Wood v. Smith, 23 Vt. 706; Abbott v. Wilmot, 22 Vt. 437; Brainerd v. Champlain Transportation Co., 29 Vt. 155.</p> <p>Interest should not have been allowed' when stock certificates subscribed for had neither been tendered nor delivered. Atlantic Phosphate Co. v. Grafflin, 114 U. S. 492; Foote v. Blanchard, 6 Allen, 221; Cyc. on Sales, 531, 584.</p> <p>Tender was necessary before action could be maintained on the stock subscription contract. Morton v. Wells, 1 Tyler 381; Barney v. Bliss, 1 D. Chipman, 399; McConnell v. Hall, Brayton, 223; Considerant v. Brisbane, 14 How. Pr. 487; Courtright v. Deeds, 37 Iowa 503; Cooper v. McKee, 49 Iowa 286; In re Hall, 206 Fed. 850; Summers v. Sleeth, 45 Ind. 598; Lester v. Jewett, 11 N. Y. 453; Barnard v. Tidrick, 152 N. W. 690.</p> <p>A tender of a stock certificate is not a condition precedent to recovery of the subscription price of the stock. Wemple v. St. Louis, J. & S. R. R. Co., 120 Ill. 196, 11 N. E. 906; Cooke on Corporations, 7th ed., § 192; Thompson on Corporations, 2nd ed., § 3822; Chester Glass Co. v. Dewey, 16 Mass. 94; Union Shoe Co. v. Pray, 67 N. H. 435; Union City, etc., R. R. Co. v. Traverse, etc., Ry. (Mich.), 136 N. W. 463, 468; Kelly v. Killian, 133 Ill. App. 102; 7 R. C. L., p. 249, § 222, and cases cited; L. R. A. 1915A, p. 465, and cases cited.</p> <p>If a contract is silent on the subject of interest, and does not by implication exclude it, on money due and payable thereunder, the law implies that interest is to be paid from the time the debt became payable. Dickenson v. Gould, 2 Tyler, 32; Porter v. Munger, 22 Vt. 191; Wood v. Smith, 23 Vt. 706; Gleason v. Briggs, 28 Vt. 135; Vermont & Canada R. R. Co. v. Vermont Central R. R., 34 Vt. 1, 65; Sumner v. Beebe, 37 Vt. 562; Dunnett et al. v. Gibson, 78 Vt. 439; Tudor v. Tudor’s Estate, 93 Vt. 353; Dodge v. Perkins, 9 Pick. 368; Foote v. Blanchard, 6 Allen, 221; Childs v. Krey, 199 Mass. 352.</p>

<p>False Imprisonment — Expenses Incurred After Release on Bail —Expense of Defense May Be Recovered Though Process of Arrest Void.</p> <p>1. In an action for false imprisonment, held that though actual restraint ends when bail is given, the prisoner is not finally discharged until the suit against him is ended, and expenses incurred therein are recoverable as damages for the unwarranted imprisonment.</p> <p>2. In an action for false imprisonment, the plaintiff is entitled to recover such damages as are the common and ordinary result of the wrongful act, including the expenses incident to the defense of the unwarranted suit? and this rule is not affected by the fact that the process on which the plaintiff was arrested was utterly void, so that no valid judgment could have been obtained against him.</p>

<p>Eminent Domain — Exceptions Do Not Lie to A Judgment of County Court Based on Report of Commissioners Appointed Under C. L. 5147 — Right of Appellate Review — Statutory Provisions Controlling.</p> <p>1. Exceptions do not lie to a judgment, based on a report of commissioners appointed under G. L. 5147 to determine the damages which, an owner of land has suffered by the taking of such land by a railroad company, the statute itself providing that such a decision of the court shall be final.</p> <p>2. In the absence of a constitutional requirement, there is no right of appellate review independent of a statute granting it. .</p> <p>3. On the question of whether exceptions lie from a decision of the county court, based on the report of commissioners appointed under G. L. 5147 to determine the damages for the taking of land by a railroad company, such section, which provides that the court’s decision shall be final, held to control over G. L. 2257, providing that questions of law in special causes may pass to the Supreme Court for final decision.</p>

<p>Principal and Agent — Authority of General Agent — Contract— Approval — Wcdver of Provision Relating to Persons Required to Approve Contract — Harmless Error — Exceptions Not Briefed.</p> <p>1. The authority of a general agent to bind his principal, being as much as it appears to be, and prima facie coextensive with the business entrusted to his care, may not be cut down by limitations unknown to a person with whom he deals.</p> <p>2. The provision in a contract that it was subject to the approval of an executive officer of the company which was a party thereto, and that it was not binding until so approved, being for the company’s benefit, could be waived or modified at its pleasure.</p> <p>3. In an action on such a contract for cutting and delivering pulpwood, held that the evidence justified the jury in finding that defendant’s local manager had authority to bind the defendant company by his approval of the contract, and that the company had approved the contract.</p> <p>4. In an action on a contract where the agent who approved the contract for the defendant had testified that he had authority so to do, error in permitting the plaintiff to testify concerning declarations of the agent to the same effect, made at the time the contract was executed, was harmless, no claim being made that such evidence was prejudicial to the defendant.</p> <p>5. After hearing had been closed in a case pending in Supreme Court, it was wholly improper and unavailing for counsel for the excepting party to send a written communication to the Court stating that, though exceptions to the charge were not briefed, they desired to insist upon them; for exceptions not briefed are waived, and rehearings are not granted to allow new points to be presented.</p>