Rosman v. Travelers' Insurance Co. of Connecticut

Constable, J., delivered the opinion of the Court. The appellant was the beneficiary named in a policy of accident insurance issued by the appellee to Samuel Rosman, her husband. In the suit by her to recover the amount for which Rosman was insured, in case of death, the jury found a verdict in favor of the appellee, and from the judgment entered this appeal was taken. The record contains eighty-four exceptions to the rulings of the lower Court, and although each has been considered by us, it is- not practical to discuss them separately and in detail, but they will be dealt with in the classes in which they naturally arrange themselves, and each class will be considered as a whole in discussing the principles of law applicable thereto.

Samuel Rosman was an agent of the appellee company for soliciting insurance, and on January 2nd, 1913, had himself insured against accident for the total amount of five thousand dollars, and named as the beneficiary in case of death his wife, the appellant. Provisions were made,- in addition to that for loss by death, for both total and partial disability of the insured, the sums payable therefor to be paid to the insured, and also for reimbursement for any hospital charges incurred because of any injuries for which indemnity, under the policy was payable. The policy expressly excepted, how ⁶⁹¹ ever, from its operation, death caused by suicide, sane or insane. There was also a proviso that “the consent of the beneficiary shall not be requisite to a surrender or assignment of this policy or to a change of beneficiary.

Samuel Rosman became ill on May 16th, 1913, and died June 5th following, at a hospital where he had been taken for treatment. It appears from the testimony that a physician was called 'in to see the sick man on May 17th and was told by Rosman that he had eaten, the previous evening, salmon and sausages. Rosman continued to grow worse and another physician was called into' consultation; and upon his repeated denials that he had eaten or taken anything but salmon and sausages, the physicians treated him for ptomaine poisoning, and removed him to the Hebrew Hospital. While there, late at night, on May 28th, Rosman sent for one of his physicians and said to him: “Doctor, the night before I was taken sick, I took three tablets of bichloride of mercury, seven and ono-half grains each.

It didn’t kill me yet, and, Doctor, if you can help me with anything go ahead and do it.” Shortly afterwards he substantially repeated the above to his other physician. On June 4th Rosman was visited by an adjuster for the appellee company, three members of a lodge to which he belonged, and his brother. Rossman said to them: “Well, before I die I want to tell you something what I have done,” and then dictated the following statement which was taken down separately by the adjuster and one of the lodge members, and after having been read to Rosman, was signed by him. Both papers were substantially the same, and both were admitted in evidence.

They are as follows: “Baltimobs, Md., June 4th, 1913. Statement of Samuel Rossman made this day in the Hebrew Hospital: May 16th, on Friday, I took 3 bichloride, 3/7 grains, put them under my tongue, took water and washed them down. My reason for taking the tablets was because I had been playing the races and I was $700.00 in the hole. I bought the tablets which I took with ⁶⁹² suicidal intent on Thursday night, May 15th, at drug store S. W. corner of Baltimore and Spring Sts.

S. Eosman. Witnesses: Abm. Linder, Michael Freed, Michael Eosman, Louis Fischel, John P. Calhoun.” There was also testimony offered and admitted that the appellee was the holder of six promissory notes delivered by Eosman to the company, purporting to have heen given by policy-holders for premiums due on policies sold by Eosman. The holders of the policies each testified that the notes purporting to bear their signatures had not been signed by them, but that they had paid the premiums in cash to Eosman.

Eosman had also been paid by the company his commission out of the notes. One of these notes became due six days after he became ill. A large number of the exceptions relate to the admissibility of the admissions and declarations made by Eosman as set forth in the above brief synopsis of the testimony. The theory of the appellant being that in this suit by the beneficiary, they were not admissible, against her, since they were not of the res gestae.

But for a settlement of this we are not concerned with whether or not they were of the res gestae. By the terms of the policy the insured reserved to himself the right to change the beneficiary without the consent of the beneficiary. By the overwhelming weight of authority it is held that where the rights of the beneficiary are dependent- upon the will of the assured, the beneficiary acquires no vested' right until the death of the insured. And this is assuredly founded upon reason; for by the contract between the insured and the insurer, any right of the beneficiary before death is a mere expectancy depending upon the will and acts of the insured.

Formerly the decisions drew a distinction between the policies of an ordinary life insurance and mutual or fraternal companies or organizations; declaring that in an ordinary life policy the beneficiary immediately acquired a vested interest at the issuance of the policy, ⁶⁹³ but that in the others he did not. An examination of the cases discloses that the reason for the distinction was based upon the lack of the right of the insured to change the beneficiary, while in the mutual and fraternal companies the policies or the charters and by-laws, which constitute a part of the contract, reserved the right to the insured to make the change. However, in this day there are very few companies of any kind which do