Connecticut. Supreme Court of Errors.

Connecticut reports: containing cases argued and determined in ..., Volume 58 online

. (page 27 of 60)
Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 27 of 60)
Font size
QR-code for this ebook


that the declarations of St. Mare prove knowledge on his
pai-t at that early date, and knowledge proves guilt. In
order however to make the mere fact of knowledge indica-
tive of guilt, all other possible sources of knowledge except
those derived from his own guilty connection with the affair
must first be excluded. The defendant offered evidence
tending to close the avenues of knowledge to be derived
from the appearance of Fannie, from her own direct dis-
closure, and from her father and mother. But obviously
there were other avenues not closed. Fannie not suspect-
ing her own condition may have consulted a physician, who
from the symptoms discovered her real condition and re-
vealed it to St. Mare, or the latter from his own observations
or from hearing her describe her feelings might have formed
an opinion to the same effect, or the defendant himself may
have coUusively revealed the fact to him.

Our conclusion on this part of the case is, that none of
the considerations urged in behalf of the defendant are
suflScient to justify the admission of the declarations in
question as evidence to exculpate the defendant.

The next alleged error which we will consider is that the
court admitted the declarations of Fannie to her mother as
to the circumstances of time and place when and where,
as she claimed, the child was begotten. This we think was
in strict accordance with our settled practice. The circum-
stances referred to were really part and parcel of her accu-
sation, and were as important to the defendant if he was
innocent, as to the plaintiff if he was guilty.

In this, as in other cases where corroboration of the in-



Digitized by



Google



JANUARY, 1890. 291



Benton- v, Starr.



jured woman is allowed, our practice permits greater detail
than is allowed in some other jurisdictions.

In State v. Kinney^ 44 Conn., 156, the superiority of our
rule as to corroboration in rape and attempts at rape was
demonstrated, and the reasoning applies equally well to the
corroboration required in bastardy suits. Pabk, C. J., in
delivering the opinion of the court, after some general rea-
soning on the question said : — " Why, on the same principle,
ought not her statement of the details to be evidence ? If
her story were untrue, the greater would be the opportunity
for detection, and the accused would be helped in his de-
fense. If her story were true, the evidence would show con-
stancy in the charge even to the details, and the truth would
the more clearly appear. We think then on principle our
rule is the better one for the ascertainment of truth."

We do not think a new trial should be granted because
the court excluded an answer to the question whether St.
Mare had been seen riding with his wife. The record shows
that his wife had left him early in August, 1885, a year and
four months before the birth of Fannie's child, and that St.
Mare had continued to live at the Benton house alone until
the latter part of March, 1887. It therefore appeared that
the relations between St. Mare and his wife were not friend-
ly, which is the utmost that' could be inferred from an an-
swer to the question. The defendant had the full benefit of
the fact that St. Mare had been seen riding with Fannie and
had a diflBculty with his wife. It is impossible that an answer
to the question objected to could have thrown any light on
St. Mare's relations to Fannie, which was the sole object of
the inquiry so far as the same was legitimate.

Only one question more remains to be considered. The
finding shows that Fanuie, the prosecutrix, had testified in
support of her suit that the defendant some months after
the alleged intercourse had given her at one time one dollar
and at another time fifty cents.

It is obvious that this evidence was offered to show some
recognition on the part of the defendant of peculiar rela-
tions to Fannie, or as showing some inducement to improper



Digiti



zed by Google



292 JANUARY, 1890.

Roraback o. Pennsylvania Co.

intercourse. The defendant on his part had the right to
meet and overcome this evidence by showing that the act
was entirely innocent. This he attempted to do as to the
fifty cents by showing that in handing that over to Fannie
he was merely paying his wife's debt to the girl, pursuant
to his wife's request. The wife was offered as a witness
and asked if the fifty cents was given at her request, and
if so, to state the facts and the reason. The plaintiff ob-
jected to the question as immaterial and irrelevant, and the
court excluded it. In this respect we think the court erred.
A new trial is granted.

In this opinion the other judges concuiTed.



Alberto T. Roraback vs. The Pennsylvania Company.

Hartford Diat, Jan. T., 1890. Ain>REW8, C. J., Cabpsitteb, Pabdek,

LOOMIS AND THATKB, JS.

The report of a case in the official reports of the decisions of the Supreme
Court of the state, is not admissible to prove that counsel stated in the
report to have argued the case, did in fact appear and arf^e it.

It is the proper way, in examining* an expert, to state all the particulars
upon which his opinion is sought.

But the direction of the matter lies within the discretion of the presiding
judge.

[Argued January 7th— decided January 31st, 1890.]

Action to recover for legal services ; brought to the Court
of Common Pleas of Litchfield County, and tried to the jury
before BradstreeU J. Verdict for the plaintiflE, and appeal
by the defendant for errors in the rulings of the court. The
case is sufficiently stated in the opinion.

D. Davenport and W. JET. (fEarc^ for the appellant.

D. T. Warner and W. B. Smithy for the appellee.



Digiti



zed by Google



JANUARY, 1890. 298



Roraback v. Pennsylvania Co.



Andbbws, C. J. The plaintiff is an attorney at law, and
as such rendered services for the defendant in an action
brought against it jointly with the Chicago, Burliugton &
Quincy Railroad Company by one Harry Palmer and his
wife. That action was tried in the Superior Court and in
the Supreme Court of Errors. To recover for the services
so rendered this suit is brought. The complaint is in as-
sumpsit; the answer is a general denial. The case was
tried before a jury in the Court of Common Pleas for Litch-
field County and the plaintiff had a verdict. The defend-
ant has appealed.

The finding states that upon the trial "the plaintiff offered
in evidence the printed record contained in 56 Conn. Reports
of said case of Harry Palmer and wife against the Chicago,
Burlington & Quincy Railroad Company and the Pennsyl-
vania Company, to which the defendant objected on the
ground that it was irrelevant and immaterial, but the court
overruled the objection and admitted the testimony, the
defendant duly excepting." This ruling is one of the rea-
sons of appeal. The finding 'does not state any ground
upon which the evidence was claimed at the trial to be ad-
missible. In the oral argument before the court counsel for
the plaintiff say it was offered to show that the plaintiff
was actually before the Supreme Court in the Palmer case,
that he made an argument there, and that he prepared a
brief in the case.

We think the admission of that record was error. As a
general rule any statement, either in writing or oral, made
by a person not called as a witness, is not admissible to
prove the truth of any fact asserted in such statement. To
this general rule there are various exceptions ; but there is
no exception to it which can make the printed statement in
the report admitted in evidence relevant to prove any of
the things claimed to be proved by it. Stephen's Digest of
the Law of Evidence, art. 14 ; Wharton on Evidence, § 176 ,
Commonwealth v. Bicker^ 131 Mass., 681.

The other reasons of appeal are based upon the form in
i^hich questions were asked of sundry witnesses called as



Digiti



zed by Google



294 JANUARY, 1890.

Lawler v. Murphy.

experts and whose opinion was desired. In asking ques-
tions of a witness whose opinion is to be given it would be
safer always to enunciate in the question all the particulars
upon which the opinion is sought. If this is done^the wit-
ness will have distinctly in mind all the elements wliich are
to enter into the opinion he gives, and the jury also will
know what these elements are, and so be able properly to
weigh the opinion when given. A prudent lawyer would
be quite likely to ask such questions in this way. In most
cases the court would probably require this kind of ques-
tions to be put in the form indicated. But as there may
be cases in which no harm could be done by permitting
questions which are to be answered by the opinion of the
witness, to be asked without such enunciation, we think it
may fairly be left to the discretion of the presiding judge
to prescribe the form in which such questions must be asked,
whenever it is necessary to do so. Woodbury v. Obear^ 7
Gray, 469.

There is error upon the first mentioned reason of appeal
and a new trial is granted.

In this opinion the other judges concurred.



Maby Lawler vs. John P. Murphy and others.

Hartford DisL, Oct T., 1889. Andrews, C. J., Oabpsnteb, Pabdbe,
LooMis and Sbtmoub, Js.

The defendants, as president, secretary and treasurer of an assessment life
insurance company, signed and issued to the plaintiff *s husband, who
became a member of the company, a certificate that the company would
on his death, in sixty days after proof, pay the plaintiff **a sum re-
ceived from a death assessment, but not to exceed $1,000." Certain
rules were appended to the certificate and made a part of the contract,
which provided that each member should pay one dollar as an initiation
fee and on the death of any member '' an additional assessment of what-
ever the directory should deem necessary." Held to involve an im-



Digiti



ized by Google



JANUARY, 1890. 296



Lawler v. Murpbj.



plied agreement to make the necessary assessment to meet the death
claim promised to be paid.

The plaintiff's complaint set out the contract in full and alleged as a breach
of it that the assessment had never been made. Held to be sufficient
under chapter 3, section 5, of the Rules under the Practice Act, with-
out an allegation of a promise to make the assessment.

By the contract set out It appeared that the defendants signed it respective-
ly as president, secretary and treasurer of the insurance company.
Held, on a demurrer to the complaint, that it did not appear as matter
of law that the defendants were not personally liable, as the company
might be only an unincorporated association, acting under an associate
name.

The plaintiff could maintain an action at law for a breach of the implied
agreement to make the assessment.

And the rule of damages would be the maximum sum, in the absence of
proof on the part of the defendants that they had made an assessment
and had failed to collect that sum.

[Argued November 15th— decided December 30th, 1889.]

Action upon a certificate of assessment life insurance;
brought to the Superior Coui-t in Hartford County. The
complaint was substantially as follows:

1. On the 12th day of July, 1886, the defendants were,
and ever since have been, and still are, jointly engaged in
carrying on a life insurance business, which was and still is
carried on by them under the name of ** Connecticut Stale
Insurance Fund of the Ancient Order of Hibernians of the
State of Connecticut," which name was and still is frequently
used in the abbreviated forms, " A. O. H. Insurance Fund,"
and "A. O. H. State Insurance Fund."

2. On said 12th day of July, 1886, the defendants, in con-
sideration of the payment by one Thomas Lawler, then in
full life but since deceased, " of one dollar initiation fee, and
assessments levied from time to time by the directory," and
the agreement on the part of the said Lawler to accept the
conditions and rules specified in the agreement hereinafter
described, entered into a written agreement with said Thom-
as Lawler, a copy of which is hereunto annexed, wherein,
among other things, the defendants agreed to pay to the
plahitiff, if living, in sixty days after due proof of the death
of said Lawler, the sum of one thousand dollars.



Digiti



zed by Google



296 JANUARY, 1890.

Lawler v. Murphy.

3. The plaintiff was then the wife of said Lawler, and had
%n insurable interest in his life.

4. On said 12th day of July, 1886, the said Lawler paid
to the defendants the sum of one dollar initiation fee, so
called, and thereafter, during the remainder of his life, {laid
eight assessments of one dollar each, levied from time to
time by the defendants through a directory, so called.

5. Said eight assessments so paid by the said Lawler were
all of the assessments levied from time to time by the de-
fendants, or said directory, during the remainder of his life.

6. On the 2d day of January, 1888, said Lawler died,
which death did not occur " in or in consequence of a duel,
or by the hands of justice, or in the violation of, or attempt
to violate, any criminal law of the United States, or of any
state or country."

7. Said Lawler duly kept and fulfilled all of the conditions
and rules of said agreement of insurance on his part.

8. The plaintiff duly fulfilled all the conditions of said
agreement of insurance on her part, and on the 1st day of
January, 1888, made due proof of death, according to the
requirements of the policy.

9. On said 2d day of January, 1888, there were, and at all
times since have been, and still are, one thousand persons
who were liable by the rules of, and under agreements with,
the defendants, to pay a death assessment of one dollar each
to the defendants, to enable, and which would have enabled,
the defendants to meet and discharge their agreement with
the plaintiff as above stated.

10. Said assessment has never been made by the defend-
ants, and the amount of said insurance has never been paid
to the plaintiff. The plaintiff claims $1,200 damages.

The certificate, which, with certain conditions and rules
appended to it, was attached to the complaint, is set out in
full, with the conditions and rules, in the opinion. The im-
portant part of the certificate was that the "Connecticut
State Insurance Fund of the Ancient Order of Hibernians,"
in consideration of one dollar initiation fee paid by Thomas
Lawler, and of assessments to be levied from time to time



Digiti



zed by Google



JANUARY, 1890. 297

Lawler v. Murphy.



by the directory, and of his agreement to accept the condi-
tions and rules annexed to the certificate as a part of the
contract, constituted the said Lawler a benefit membor of
the Insurance Fund, and agreed to pay to Mary Lawler, his
wife, if then living, if not, to his heirs at law, in sixty days
after due proof of his death, " a sum received from a death
assessment, but not to exceed one thousand dollars/' The
principal among the rules were the first, which provided
that each member should pay one dollar at the time the
contract of insurance was made, and the second, which pro-
vided that on the death of any member the other members
should pay to the secretary, if required, an additional assess-
ment of whatever the directory should deem necessary. The
certificate was signed by one of the defendants as president
of the Insurance Fund, by another as its secretary, and by
a third as its treasurer.

The defendant demurred to the complaint, assigning the
following grounds of demurrer: —

1. It appears from the written contract declared on that
the defendants made no C(mtract upon which they were per-
sonally liable, but that said contract was signed by them
only as officei-s of the organization mentioned therein.

2. It appears by said contract that the only agreement
made therein was to pay such sum as might be received from
a death assessment, and it is not alleged in the complaint
that any such sum was ever received.

8. The only breach of said contract alleged in the complaint
is that the defendants did not make an assessment, whereas
there is no provision in said contract that the defendants or
any of them should make any such assessment.

4. Said complaint in its second paragraph alleges that by
said contract the death assessment was to be made by the
defendants, whereas it appears in said contract that death
assessments were to be made by the directory of said asso-
ciation, and it is not alleged that the defendants are members
of said directory.

The court (^F. B. Hall^ J.y) sustained the second ground



Digiti



zed by Google



298 JANUARY, 1890.



Lawler v. Murphy.



of demurrer, and rendered judgment for the defendants.
The plaintiff appealed.

0. E. Qross^ for the appellant.

1. We contend that this is an agreement to pay $1,000 un-
less the defendants shall within the sixty days make a death
assessment and fail to receive therefrom that sum, in which
case the agreement is to pay only the amount so received.
That this is the proper construction appears from the follow-
ing facts : — (1st.) Nowhere in the policy do tlie defend-
ants agree to make any assessment to pay a death claim. —
(2d.) The fourth condition shows that the death claim is to
be paid by the defendants in sixty days, irrespective of the
receipt by them of the assessments. — (Sd.) The second rule
shows that a death claim is not necessarily paid from an
assessment made to meet that particular claim, for the mem-
bers are to pay death assessments only " if required." —
(4th.) The third and fourth rules show that a fund is re-
ceived from other sources besides death assessments, that is,
annual assessments and assessment arrearages. And this
shows the reason why death assessments are to be made
only "if required." "That no assessment was made with
reference to this case is some evidence that none was neces-
sary." Freeman v. Nat. Benefit So,^ 42 Hun, 257. See also
Bailey v. Mut. Benefit Asso.^ 71 Iowa, 689, 692. Any other
construction than this would permit these defendants to
perpetrate a fraud. As there is no agreement to make an
assessment, none can be compelled. The third rule does
not provide for an assessment. This rule only provides for
the notice that shnll be given of assessments, so as to pro-
tect the members from forfeitures for non-payment of assess-
ments. If the defendants' claim in this case is correct, then
no death claim can be collected through or enforced by the
courts, for the defendants have only to neglect to make an
assessment. The authorities are all in favor of our con-
struction of the contract. Niblack on Mut. Benefit Socie-
ties, § 406 ; Freeman v. Nat. Benefit So., 42 Hun, 262, 264,
267 ; O'Brien v. Home Benefit So., 61 id., 496, 499 ; Peck v.



Digiti



zed by Google



JANUARY, 1890. 299



Lawler v. Murphy.



Equitable Accident Asso,^ 62 id., 265; Kansas Protective
Union v. Whitt^ 86 Kansas, 764; Sankinson v. Page^ 31
Fed. Rep., 184.

2. All averment of demand for an assessment is not neces-
sary. " It is not necessary, iu order to lay the foundation
of a recovery, that the plaintiff shall make, or aver that he
has made, a demand upon the society for an assessment
upon its members to pay the death loss." Niblack on Mut.
Ben. Societies, § 896. "The furnishing of satisfactory
proof of the death of the member of the society, according
to the provisions of the certificate issued to him, should be
held to be a demand for payment, and impliedly would also
be a demand upon the company to procure the necessary
fund by assessment if need be." Freeman v. Nat. Benefit
So.y 42 Hun, 266. See also Kansas Protective Union v.
Whitty 36 Kansas, 760; Smith v. Covenant Mut Benefit
Asso., 24 Fed. Rep., 686.

8. Tl)e argument thus far is made upon our interpretation
of the contract, to the effect that there is no agreement con-
tained therein that the defendants will make an assessment.
Even if we are mistaken in this, the court erred in dismissing
the complaint. When the contract provides that an assess-
ment shall be levied and the proceeds thereof, not exceeding a
certain sum named^ shall be paid to the beneficiary, it has been
held that the insurers are prim4 facie bound to pay the max-
imum amount named, and the burden of proof is on them to
show that a less amount has been or could only have been
collected. Elkhart Mut, Aid Asso. v. Houghton^ 103 Ind.,
286 ; Lueder*s Ezrs. v. Hartford Life ^ Annuity Ins. Co,^ 12
Fed. Rep., 466 ; Kansas Protective Union v. Whitt^ 36 Kan-
sas, 760; Suppigery. Covenant Mut. Ben. Asso.^ 20 111. A pp.,
695 ; Covenant Mvt. Benefit Asso. v. Hoffman^ 110 111., 606.
In other cases the courts hold that the plaintiff can prove
the amount that an assessment, if it had been made in good
faith upon the members, would have brought in, and that
such an amount can be recovered at law. Ball v. Granite
State Mut. Aid Asso.y 64 N. Hamp., 291 ; Sankinson v. Page^
81 Fed. Rep., 184 ; Curtis y. Mut. Benefit Life Co.^ 48 Conn.,



Digiti



zed by Google



800 JANUARY, 1890.



Lawler v. Murphy.



98. Some earlier cases hold that where the promise is to
levy an assessment and pay the amount received, not exceed-
ing an amount named, if the insurers neglect or refuse to lay
an assessment resort must be had to a chancery court to
compel an assessment before a recovery can be had at law.
Smith V. Covenant Mut. Ben. Asso.^ 24 Fed. Rep., 685 ; Bai-
ley V. Mut. Ben. Asso.^ 71 Iowa, 689 ; Nettnnan v. Covenant
Mut. Ben. Asso.^ 72 Iowa, 242. The better bpinion seems,
to-day, to be opposed to these decisions. Niblack on Mut.
Ben. Societies, §§ 408, 409 ; Hankinaon v. Page^ 31 Fed. Rep.,
184 ; Tat/lor v. National Temp. Relief Union, 94 Mo., 35 ;
Eam^haw v. Sim Mut. Aid So., 68 Md., 465. All the cases
cited above which deny substantial damages in case an as-
sessment is promised but not made, hold that the plaintiff is
entitled to nominal damages in an action at law, where the
fact appears that the assessment has not been made.

4. The defendants are liable as individuals. It does not
affect the case that they did not intend to incur a personal
liability. Davison v. Bblden, 55 Conn., 113. "It is not ne-
cessary that the person incurring the debt for the benefit of
an unincorporated society should know at the time that he
is incurring a personal liability or indebtedness ; nor does it
alter the question that he, at the time, contracted as an offi-
cer of the society." Niblack on Mut. Ben. Societies, § 105.
See also Fredenhall v. Taylor, 26 Wis., 286 ; Blakely v. Ben-
necke, 59 Mo. 193.

C. U. Perkins and A, Perkins, for the appellees.

1. Our first ground of demurrer is in substance that the
action is brought against the three defendants personally,
whereas it appears by the contract that they did not intend
to bind themselves personally, but only as officers of some
organization which in fact made the contract. This objec-
tion may be taken by demurrer where the contract declared
on is made a part of the complaint. Hitchcock v. Buchanan,
105 U. S. R., 416. The contract does not purport to bind the
defendants personally. The complaint alleges that these
defendants entered into the agreement with Lawler, whereby



Digiti



zed by Google



JANUARY, 1890. 801



Lawler o. Murphy.



the defendanU agreed to pay a sum received from a death
assessment, etc. Now this agreement appears to be signed
by these three defendants solely as officers^ namely, president,
secretary, and treasurer, and not as individuals, and it comes
exactly within the decision above mentioned. There a suit
was brought against two defendants personally, as drawers
of a bill of exchange, which was set out in the complaint,
and which was signed by them only as president and secre-
tary, and the court held on demurrer that the defendants
could not be made liable personally on a written instrument
signed by them only in the capacity of oflBcers of some organ-
ization. So in the case at bar, the written contract controls
the allegations, and if from the whole complaint it appears
that the agreement was not intended to bind the defendants
pei-sonally, the complaint is demurrable. The rule is well
settled in this state since Uemtt v. Wheeler^ 22 Conn., 657,
that the court is to look at the whole agreement to see
whether the parties intended to be personally bound. It is
claimed that, under the decision in Davison v. Holden^ 55
Conn., 103, the defendants became liable as members of an
association, all the membei-s of which were liable, and that
if there were others not sued that fact should have been



Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 27 of 60)