Opinion
[No. 54, January Term, 1928.]
Decided April 18th, 1928.
Evidence — Employer's Record Card — Issue as to Employee's Discharge — Negative Evidence — Employees' Group Insurance — Instructions.
On an issue as to whether one insured by a group policy of life insurance covering only the employees of a certain company was discharged by the company before his death, a record card kept by the company was inadmissible to show the discharge, it not having been made out by the official producing it as a witness, and it not appearing that he saw the entries made thereon, that he knew the handwriting, or that the clerk who made the entries was dead or inaccessible. pp. 214, 215
In an action to recover life insurance, payable only if the insured died while employed by a certain company, testimony by one who worked in a gang of which insured was foreman, that he stood next to insured while they were being paid off on a certain day, and went home with him, and that he did not hear anything about insured being discharged at that time, was, although negative, some evidence that he was not discharged at that time, as claimed by the insurer. p. 215
In an action to recover life insurance, payable only if insured was an employee of a certain company at the time of his death, the fact that defendant insurer did not deny liability when seen about the insurance immediately after the death of insured was some evidence that decedent was an employee of the company when he died. p. 216
In an action to recover insurance on the life of G under a group policy covering the employees of a certain company, which provided that the insurance should end as to any employee in case his employment should end while he was not "wholly disabled" from working, the burden of proving the discharge of G by the company before his death was on the defendant insurer, and whether that burden was met was for the jury. p. 216
In such case, it was error to refuse defendant's prayer that plaintiff could not recover if G was discharged from such employment before his death, there being no evidence of disability at the time of the alleged discharge. p. 216
It was also error to grant such prayer with a proviso which, in referring to the provision of the policy in regard to an employee's disability at the time of his discharge, omitted the word "wholly" before "disabled." p. 216
In an action on an insurance policy, an objection to the modification of an instruction as not justified by the language of the policy was not available on appeal in the absence of a special exception. p. 217
Decided April 18th, 1928.
Appeal from the Court of Common Pleas of Baltimore City (O'DUNNE, J.).
Action by J. Frank Fox, administrator of Alice Gattis, deceased, against Travelers' Insurance Company of Hartford. From a judgment for plaintiff, defendant appeals. Reversed.
The defendant's two prayers were as follows:
First. "The court instructs the jury that the policy sued upon in this case provides that the insurance of any employee covered thereby shall end when his employment with the employer shall end, and from the uncontradicted evidence it appears that William Andrew Gattis died on the 12th day of December, 1925, and that prior to that date he had been discharged from his employment, and was no longer in the employ of the United Fruit Company, that therefore the plaintiff is not entitled to recover in this case, and their verdict must be for the defendant."
Second. "The court instructs the jury that the policy sued upon in this case provides that the insurance of any employee covered thereby shall end when his employment with the employer shall end, and, if the jury shall find that William Andrew Gattis died on the 12th day of December, 1925, and that prior to that date he had been discharged from his employment, and was no longer in the employ of the United Fruit Company, then the plaintiff is not entitled to recover in this case, and their verdict should be for the defendant."
The second prayer was modified by the court by adding the following: "Provided the jury further find that at the time of his discharge or attempted discharge he was not disabled, sick, etc., as provided for in the policy clause before you."
The cause was argued before BOND, C.J., URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.
Fendall Marbury, with whom was L. Wethered Barroll on the brief, for the appellant.
J. Cookman Boyd, for the appellee.
William A. Gattis, a colored man, was employed for four or five years as foreman of a gang of negro stevedores by the United Fruit Company, who took out a group policy of life and disability insurance covering its employees. Gattis, as one of these, held a certificate issued to him by the company certifying
"that under and subject to the terms and conditions of a Group Life Policy of Insurance No. G. 3040, issued and delivered by the Travelers' Insurance Company, Hartford, Connecticut, the life of William Andrew Gattis, an employee of United Fruit Company * * * and a member of the Association United Fruit Company Dock Workers, is insured initially for the sum of five hundred dollars, payable to Alice Gattis, wife, as beneficiary if death shall occur during the continuance of said policy while the employee is insured thereunder.
"The insurance of any employee covered hereunder shall end when his employment with the employer shall end or prior thereto upon termination of membership in the Association United Fruit Company Dock Workers, except in a case where at the time of termination of employment the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance will remain in force as to such employee during the continuance of such disability for the period of three months from date upon which the employee ceased to work and thereafter during the continuance of such disability, and while this policy shall remain in force until the employer shall notify the company to terminate the insurance as to such employee."
Attached to said certificate and made a part thereof was a "notice of increased insurance," in which it is stated that the insurance on the life of Gattis has been increased to $1,000 as of 12/31/24, in recognition of continued service.
Gattis died on December 12th, 1925, and his wife survived him only five days. Before her death some one on her behalf applied for payment of the insurance, but was told the widow would have to appear in person. On December 30th, 1925, appellee was appointed administrator of the personal estate of Alice Gattis. He demanded payment of the insurance, but payment was refused on the alleged ground that the insured was not in the employ of the United Fruit Company at the time of his death. Whereupon suit was brought against the appellant by the appellee on the common counts and a special count, in which the plaintiff alleged that Gattis was insured by the defendant for $500, payable to his wife Alice Gattis as beneficiary; that this was, on December 12th, 1924, increased to the sum of $1,000, in recognition of continued service; that Gattis died on December 14th, 1925; that Alice Gattis died on December 17th, 1925; and that due demand had been made on defendant for the payment of said sum of $1,000 and payment refused.
The defendant pleaded the general issue pleas and a third plea, setting up as a defense that it was expressly provided in said policy that in case the insured ended his employment with his employer the insurance should end, and that said Gattis did end his employment with said employer on December 1st, 1925, and thereafter died on December 12th, 1925, and that at the time of his death he was not in the employ of said employer, and that under the terms of said policy no insurance was due on account of the death of said William A. Gattis. Replication and joinder of issue were entered "short." The case was tried by a jury and a verdict rendered in favor of plaintiff, on which judgment was entered. This appeal is from that judgment.
Two exceptions are brought up; one to a ruling of the trial court on evidence, and the other to its ruling on the prayers of defendant.
The reporter is requested to set out defendant's prayers as offered and the second prayer as modified by the court.
We find no error in the first exception. Defendant offered, for the purpose of corroborating the testimony of Otter, the superintendent of the United Fruit Company, that he discharged Gattis on December 1st, 1925, a card which appears to be a record card of Gattis kept by the company under a provision in the policy which required the employer to furnish the company with the names of employees whose insurance had terminated, with the date of the termination of the insurance. On this card there appears the names of the insured employee and the beneficiary, and of the employer, and other data in connection with the insurance, and the entries, "cancelled," and, "dismissed Dec. 1, 1925." The card was produced by Otter, the superintendent of the fruit company, who testified that he did not make the entries. The court refused to admit the card. It was not made out by the witness, and there is no evidence that he saw the entries made, knew when they were made, or that he knew the handwriting. Nor does it appear that the clerk who made the entries was dead or inaccessible.
Defendant's first prayer was properly refused.
All the evidence shows that the insured was in the employ of the company up to the close of work the day before he became ill. Defendant relies upon an alleged discharge on that day. Defendant's testimony as to the time of the discharge was that it occurred at the end of the work on December 1st, 1925, and "everybody was getting paid off." Benjamin Parker, a witness for the plaintiff, testified the men were paid off when they finished working. "We stand in line and are paid off down to the wharf right at the office." Q. And when you stood in line where was Gattis? A. He was standing there next to the window. Gattis was there to get his money, too, after he sees that all his men get their money first. I saw him get his and we all went home together. During that time I didn't hear anything said about not working there. Q. If anything was said you would have heard it if you were right there? A. I was right there. I was on the second stage. It was the last of that week that he died.
If we were dealing with weight, the negative testimony of Parker, that he "didn't hear" anything about a discharge, might be slight as against the positive testimony on the other side.
This case does not come within the description, in United Railways Elec. Co. v. Crain, 123 Md. at page 347, of negative testimony that may be entirely disregarded. The witness was in a position to hear, and his attention would naturally have been attracted by the discharge of a man who for some time had been foreman of the gang in which he worked. In the other cases referred to by appellant the court was dealing with the weight of the testimony.
Then, too, there was testimony that when some one went to see the company about the insurance, right after Gattis' death, the company did not deny liability, but said the widow would have to come in person.
The burden of proving the discharge was on the defendant. It was for the jury to determine whether that burden had been met. Calvert Bank v. Katz, 102 Md. 56; Lemp Brewing Co. v. Mantz, 120 Md. 176; Travelers Ins. Co. v. Connolly, 145 Md. 554.
There was error in the refusal of defendant's second prayer as offered. It was a correct statement of the law as applicable to the evidence in the case, there being no evidence of disability at the time of the alleged discharge.
There was also error in the prayer granted by the court, being defendant's second prayer with a proviso. The question submitted to the jury by the proviso was not a correct proposition of law. By the contract of insurance, the liability of the insurance company ended as to the insured on the termination of his employment, "except in a case where at the time of termination of employment the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit." This exception was not properly set out in the prayer. The word "wholly" before the word "disabled" was omitted in the prayer, and enough more to make the prayer misleading. Doubtless the learned trial judge intended this part of his instruction to be checked up by the jury with the language used in the policy; but having inserted as much as he did of the language of the policy it was misleading to leave so much to reference and to the recollection of the jury as to the exact provision of the policy.
As above stated, defendant's second prayer was good as offered. It would have been error to modify it by the proviso, even if the proviso had been in accordance with the terms of the contract, because there was no evidence to justify the modification. But the objection on that ground is not available to the defendant on appeal, there having been no special exception.
For the error in refusing defendant's second prayer as offered and in granting the prayer as amended by the court, the judgment must be reversed and a new trial awarded.
Judgment reversed and new trial awarded, with costs to appellant.