(111 A.) pertaining to his occupation, if he is unable to perform any substantial portion of his work. The defendant gives countenance to this proposition in stating its claims under the motion. cars," cannot be said to be wholly and con- to perform a few occasional or incidental acts tinuously disabled from performing any and every duty pertaining to his occupation, within the meaning of an accident policy, when he continues in the same employment superintending the same kind of work he had previously been engaged in, working nine-tenths of full time and receiving 90 per cent. of full pay. The rule of general application to policies of accident insurance is that their terms must be given a reasonable construction in view of the purpose for which the contract was made, and in case of doubt must be construed against the defendant. Bates v. German Com. Accident Co., 87 Vt. 128, 88 Atl. 532, Ann. Cas. 1916C, 447; Robinson v. Masonic Protection Ass'n, 87 Vt. 138, 88 Atl. 531, 47 L. R. A. (N. S.) 924. At the same time the language employed should be so construed as to serve the purpose of guarding the insurer against fraud or imposition. The provision as to disability in such a policy as this cannot be given a literal construction. To do so would be to hold in effect that the insurer would be liable in no case unless the insured by the accident should lose his life or his reason; for, so long as one is in possession of his mental faculties, he is capable of transacting some parts of his business, whatever it may be, although incapable of physical action. Thayer v. Standard Life & Acc. Ins. Co., 68 N. H. 577, 41 Atl. 182. The term "total disability," or its equivalents, is necessarily a relative term, depending in a measure upon the character of the occupation and the capabilities of the insured, and to a large extent upon the circumstances of the particular case. Ordinarily it is a question of fact, and not of law. 4 Cooley's Briefs on Ins. 3288. It does not mean absolute physical inability to transact any kind of business pertaining to the insured's occupation. It is fairly supposable that it might be physically possible for the injured party to perform some act relating to his occupation when common prudence would require him to desist to effectuate a cure. The ability to perform some duty pertaining to his occupation would not in such circumstances defeat his right to indemnity, but he might be totally disabled in contemplation of the insurance contract. Metropolitan Casualty Co. v. Edwards (Tex. Civ. App.) 210 S. W. 586. Likewise an attempt to perform some of the duties of one's occupation when such an attempt is an indiscretion or an error of judgment would not prevent him from showing that he was totally disabled. United Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462. An honest effort to labor which ought not in fact to be made should not, nor does it, defeat a right to indemnity under a policy of accident insurance. It is generally held that total disability may exist though the insured is able While the courts of last resort are not in complete accord, the weight of authority supports the rule that the insured is totally disabled, even under the terms of an accident insurance policy like the one in question here, if he is disabled from performing the substantial and material acts connected with his occupation. 4 Cooley's Briefs on Ins. 3290; Kerr on Ins. §§ 385, 386. The term as used in such a policy is sometimes defined as inability to perform all the duties necessary to the practical prosecution of one's vocation or business, disregarding all trivial acts which are not material to the prosecution thereof, but which are merely incidental thereto. Note Ann. Cas. 19180, 113; 14 R. C. L. 1316; note 38 L. R. A. 529, where many cases are reviewed. Applying these well-recognized tests to the facts relied upon, we are unable to say, as matter of law, that the plaintiff was totally disabled in contemplation of the clause of the policy in question. It follows that the plaintiff was not concluded by these facts from claiming indemnity under the policy. When all the evidence bearing upon the question is considered, it is very evident that the motion for a directed verdict was properly overruled. The evidence tended to show that during all the time the defendant claimed that the plaintiff was partially disabled he was physically unfit for the transaction of business. It is unnecessary to rehearse the evidence in detail. We content ourselves with stating only a few of the salient facts. The condition of the plaintiff's leg was such that he could not put his foot to the floor, and could only get around with difficulty on crutches. Incisions had been made in the foot and leg, which were from time to time renewed, in which drainage tubes were constantly kept for the removal of pus. These open sores had to be cleansed and dressed at regular intervals. The plaintiff was under treatment of a physician constantly. He was in constant pain, was weak and nervous, and could sleep only under the influence of drugs. The diseased condition of the foot, admittedly due to the accident insured against, was continuous and progressed in spite of surgical skill to a point where amputation was necessary to save the plaintiff's life. At times the plaintiff was confined to the house. At times wher able to leave the house he rode to the store and would sit in his office for a while with his foot in a chair. These occasional visits to the store were, as plaintiff testified, to get relief from his loneliness and pain. He was unable to and did not transact any of the business at the store. Respecting the trip to New York, the plaintiff testified that he went because he had nobody to send to select goods for the spring opening. In addition to what already appears, the evidence tended to show that the plaintiff was obliged to stop off at Troy on the way down and back for rest; that each time he went out he was obliged to return to his hotel after an hour or two and go to bed; that he was unable to do the purchasing without the assistance of Mrs. Clarke and the resident buyer. who virtually did the buying; that he did not examine the goods, but sat around while the rest examined them. This evidence made the question of the plaintiff's disability one of fact for the jury under proper instructions. demnity for total loss of time provided in [5, 6] The defendant briefs the claim that it was error to admit evidence in support of the claim for weekly indemnity and to submit that question to the jury in the absence of the proof of loss required by the policy. It is therein stipulated that affirmative proof must be given to the company at the home (Supreme Court of Vermont. Rutland. Oct. 9, MCDONOUGH et al. v. HANGER et al. (No. 247.) 1920.) defendant has burden of proving performance of covenant of seisin inapplicable. The common-law rule that in an action for breach of covenant of seisin the defendant, on proof of the deed containing the covenant, has the burden of proving performance has no application to present-day conditions, being based on wholly unnecessary, in view of the present-day peculiarities of English conveyancing, and being registration of titles. 2. Pleading 93(3)-Defendant cannot deny and avoid under Practice Act. Defendants, who were sued for breach of either deny the charges or some of them or covenant of seisin, may, under Practice Act, make a brief statement of the facts relied on in defense, but they cannot do both. 3. Pleading 35 Statement of facts, surplusage in view of general denial. office within 7 months from the date of death, dismemberment, or loss of sight, or within. Covenants 118-Common-law rule that the same time from the termination of each 13-week period of continuous disability, or from the termination of such disability if the full period is more or less than 13 weeks. It has been held that the filing of such proof is a condition precedent to a right of recovery. Bickford v. Travelers' Ins. Co., 67 Vt. 418, 32 Atl. 230. But the requirement can be waived and is waived by a distinct denial of liability and refusal to pay upon a specific substantive ground unconnected with the proof of loss, before the time has expired within which the insured is bound by the terms of the policy to present formal proof of loss. Frost v. North British & Mercantile Ins. Co., 77 Vt. 407, 418, 60 Atl. 803; Mellen v. U. S. Health & Accident Ins. Co., 83 Vt. 242, 75 Atl. 273. There was evidence tending to show a distinct denial of liability As it is not permissible for a defendant to and refusal to pay any indemnity for loss of deny and avoid at the same time, an answer, afthe foot, amounting to a waiver of the proof firmatively alleging that defendants, sued for of loss to that extent, on the ground that the breach of covenant of seisin, did keep and perplaintiff was not wholly and continuously dis- form the same, which followed after a general abled from the time of the accident to the denial, will be deemed surplusage, and the gentime of dismemberment. The defendant prac-eral denial alone considered, so that plaintiff tically concedes this by making no claim here has the burden of proving the breach of the that the right of indemnity for dismember- covenant. ment was lost by failure to make the required proof. It would seem to follow that want of proof of loss would not affect plaintiff's right to recover for loss of time, to the extent at least that he was permitted to recover. So far as now material, the policy provides for two distinct classes of indemnities: (a) A single indemnity for death, dismemberment, or loss of sight; (b) a single indemnity for total loss of time. The indemnity for dismemberment of a foot is a specified sum and in addition the weekly in 4. Deeds 111-Particular controls general description. A particular description controls a general description. 5. Boundaries 3(4) Where water course boundary is given, it governs over reference to description of previous conveyance. Where the land was described as bounded by a water course, the call for the natural boundary takes precedence over the description in a deed to defendants' predecessor, referred to as describing the land meant to be conveyed, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) though a change in water course made the last deed include more land than the earlier deed. shows that these defendants first filed a general denial; and, if they had stopped there, all would be clear enough, for this put the Exceptions from Rutland County Court; plaintiffs to the proof of every material alFrank L. Fish, Judge. Action by Anthony E. McDonough and others against Samuel E. Hanger and others. Judgment for plaintiffs, and defendants except. Reversed, and cause remanded. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. legation of the complaint. Id. But the defendants subsequently filed a further answer, in which they denied the breach of the covenant, and alleged that they did keep and perform the same. It was in this last phrase that the common law would find an affirmative which the defendants would have to prove. But if this further answer is anything more than a denial of facts alleged in the complaint, it is improper. For, as we have Henry L. Clark, of Castleton, and Walter S. Fenton, of Rutland, for the plaintiffs. William H. Preston, of Fair Haven, för de- seen, the defendants had availed themselves fendants. POWERS, J. [1] This is an action of contract on a broken covenant of seisin. At the trial below, the plaintiff put in evidence the deed containing the covenant sued on, and, reserving the right to prove his damages, rested, claiming that the burden was thereby cast upon the defendants to prove the performance of their covenant. The court so ruled, and the defendant excepted. In support of this ruling, the plaintiffs call to our attention various cases from other jurisdictions so holding. But these decisions are all founded upon the common-law rule, which, it may be admitted, was just what the plaintiffs here claim. This rule, however, was so peculiar and created a situation so anomalous that it provoked from Judge Cooley, when it was insisted upon in Ingalls v. Eaton, 25 Mich. 32, the statement that if such was the rule, it was "probably the only instance in the law in which the mere assertion of a claim against a party is sufficient prima facie to establish it." With characteristic terseness, he then proceeds to show the fallacy of the doctrine when applied to present-day conditions. The rule had its basis, as is shown in an interesting opinion in Woolley v. Newcombe, 87 N. Y. 605, in the English system of conveyancing, whereby the grantor, in many cases, for the very purpose of enabling him to establish his title when occasion should require, retained his title deeds, which were not then a matter of public record. But under a registry system like ours, no such rule is necessary; for the condition of the title is equally accessible to both grantor and grantee. When of a statutory general issue, and they could not thereafter avoid the facts alleged against them. See Powers v. Rutland R. Co., 83 Vt. 415, 76 Atl. 110. In these circumstances, we think this further answer should be considered as nothing more than a denial of the breach alleged in the complaint and as adding nothing to the general denial already on file. This leaves the plaintiff with the burden of proving, not only the covenant, but the breach of it. Dernier v. Rutland Ry. L. & P. Co., supra, is full authority for this holding, and is in entire accord with the decisions in actions on this covenant standing on statutory general issues. Ingalls v. Eaton, supra; Woolley v. Newcombe, supra; Peck v. Houghtaling, 35 Mich. 127; Hamilton v. Shoaff, 99 Ind. 63; Wine v. Woods, 158 Ind. 388, 63 N. E. 759; Eames v. Armstrong, 142 N. C. 506, The only question is in regard to the west call of this deed. It also contains the following clause: "Meaning hereby to convey the same premises which were conveyed by Squires, Sherry and Galusha to Ryland Hanger by deed dated December 22, 1881, and recorded in Book 19, page 199, of said Castleton Records, except so much thereof as is situated south of said railroad." [2, 3] It is of little importance to us, however, to know what the common-law rule was or why it was so. Our Practice Act (G. L. The defendants claimed and offered evi1789-1805) governs the case before us. the defendants were confronted with the dence tending to show that, while the west charges contained in the complaint, they were at liberty to deny them, or some of them, or they could make a brief statement of the facts relied upon in defense. They could not do both. The language of the act precludes this. This is made clear by the recent holding in Dernier v. Rutland Ry. L. & P. Co., 94 Vt. 110 Atl. 4. The record before us boundary of the land conveyed by the deed of 1881 is therein specified as the "water course flowing from the mills," there was at that time a millpond there, which subsequently went out, so that at the time the deed in question was given the water course was farther west than when the former deed was given; and they also claimed that the mean case does not apply to a case like this one, where conditions have changed since the first deed was given. Indeed, the court was careful to distinguish that case from one wherein the deed contained a particular description, together with a general reference to one containing a more restricted description. It follows from the views expressed above that the variance, if any, was immaterial. Judgment reversed, and cause remanded. Let the defendants there apply for transfer into equity for reformation of the deed, if they be so advised. TOWN OF CABOT v. TOWN OF ST. JOHNS- ing of the last deed was controlled and restricted by the clause quoted-or at least a question was thereby raised to be determined on the evidence. The court ruled against these claims, and held that the description by metes and bounds was controlling, and was not affected by the clause making allusion to the former deed. The ruling was free from error. For, it is a well-settled rule of construction that a particular description in a deed controls a general description in the same instrument. Cummings v. Black, 65 Vt. 76, 25 Atl. 906; Huntley v. Houghton, 85 Vt. 200, 81 Atl. 452; Whittier v. Parmenter, 90 Vt. 16, 96 Atl. 378; Cutler Co. v. Barber, 93 Vt. 468, 108 Atl. 400. While all technical rules of construction yield to the master rule of expressed intention (Johnson v. Barden, 86 Vt. 19, 83 Atl. 721, Ann. Cas. 1915a, 1243), none is more rigid, says Chief Justice Savage in Perry v. Buswell, 113 Me. 399, 94 Atl. 483, than the one just stated, which we said in Cutler Co. v. Barber, supra, was "too well. established to require further notice." That the clause in question is, in a legal sense, a general description, is fully established by our cases. And this is so, even though the deed referred to contains what the law recognizes as a particular description. The clause before the court in Wilder v. Davenport, 58 Vt. 642, 5 Atl. 753, was of the same import as the one before us. It was this: "Intending hereby to convey the same lands, and no 2. Paupers 39 (6) Additional notices to other, which passed to me by virtue of the foreclosure of" certain mortgages specified. In holding that the particular description was controlling, Judge Veazey says: "It would therefore be introducing complete uncertainty in deeds if, after a precise description by metes and bounds without exception or reservation, such description could be overcome, when it turned out that the grantor did not own all he described, by adding a clause as to his intent, such as was done in this deed." The clause before the court in Cutler Co. v. Barber, supra, was essentially like the one before us. It read: "Being all and the same land and premises conveyed" by Wells Goodhue to Thomas Judge "by deed dated November 17, 1896, and recorded in Book W, page 211, Brattleboro Land Records." (Supreme Court of Vermont. Paupers Washington. 39(6) - Notice to town to sup port not insufficient. Notice to a town to support paupers, as re quired by G. L. 4220, stating that the lastknown residence of the paupers in the state for three years, supporting themselves, was in another town, did not release the first town from obligation to act; the record stating that the overseer of the poor of plaintiff town gave written notice, as required by the statute, to the overseers of the poor of the two towns. permit recovery of support by one town from another for more than 60 days not required. Under G. L. 4220, to permit recovery by one town of another for the support of paupers for more than 60 days, no new or additional notices to the town against which the recovery is sought are required; the original notice required by the statute having been given. 3. Paupers 19(7) Three years' residence necessary to fix residence for purposes of sup. port. Three years' residence in a town is necessary to fix the residence of a pauper for purposes of support under the pauper law. 4. Paupers 20 (3, 4)-Residence of husband determines that of family. The legal residence of a pauper husband determines that of his wife and children for purposes of support under the pauper law. 5. Paupers 39 (4)—Liability of town of residence for relief furnished depended on its obligation. The deed referred to described the land conveyed as bounded on the "west by lands of Liability of the town of a pauper's statuWilliam Holding." And we held that the tory residence for relief furnished her dependspecific description contained in the deed was ed, not merely on the fact that such relief was controlling. The defendants rely strongly upon Wilson v. Underhill, 108 Mass. 360, wherein it is held that a description in a former deed repeated in terms in a later one retains in the new deed the meaning it had in the old one. But that case is not contrary to the views herein before expressed. The doctrine of that furnished, but likewise on the town's own obligation to do it, rather than that of the town which furnished it. 6. Paupers 37(1)—Town not liable for support furnished to married woman by other if husband had means. The matter of liability of a town for the support of a married woman as a pauper in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) addition to her own pecuniary ability embraces the ability of the husband whenever he is liable for the support rendered her, and if he is of sufficient ability the town rendering the support cannot enforce claim therefor against the town in which the woman supported had a legal residence under the pauper law. 7. Paupers 37(1) Husband liable under statute to town for support furnished wife. J. Ward Carver and H. William Scott, both of Barre, for plaintiff. Searles & Graves, of St. Johnsbury, for defendant. WATSON, C. J. The agreed statement of facts shows that on January 20, 1915, Annie M. Gilman (the widow of one Gilman by whom she had two children, yet minors) was Under G. L. 4230, if a married man of suf-married to Frank L. Taylor of St. Johnsbury. ficient ability to support his wife by his default At the time of this marriage Mrs. Gilman was suffers her to become chargeable as a pauper keeping a boarding house at Lyndon. On the on a town, the town may recover the expense day named, Frank L. Taylor's residence unincurred by it for her support in an action der the pauper law was in the town of St. against the husband; the recovery being limited in time covered by the expense as specified. Johnsbury, where he had last resided for the space of three years, supporting himself. On 8. Paupers 39(4)-Town which bona fide re- and after the day named, he resided at Lynlieves apparent pauper may recover expense don, hitherto living there, occupying the same from town of residence. house in which he went to reside at the time of his marriage. Two children have been born of this wedlock; Hattie Alice Taylor, born on November 11, 1915, and Fidora A. Taylor, born on February 18, 1917. When a town bona fide relieves a person virtually a pauper and actually standing in need of relief, the town of such person's statutory residence, if given the notice required by G. L. 4220, will be liable for the expense, though it eventuates that the person relieved had some property, a rule applicable only when the person's property is not available for his immediate relief or disproportionate to his needs. 9. Paupers 1-Person with property not a "pauper." A person who has property immediately available for his support is not a "pauper," and has no claims on public charity; the obligation of towns under the pauper law being limited to those unable to help themselves. On August 13, 1917, Mrs. Taylor took her four children, and went to the town of Cabot to reside with Charles Gilman, father of her former husband, and while there, owing to her feeble condition of health, she came to want and was in need of support and assistance; and on November 13, 1917, she made application to the overseer of the poor of that town for assistance for herself and Taylor children. Those two children were then small babies, the older one being but two days more than two years old. They were not poor persons in need of assistance in plaintiff town. The mother was the poor person there in need of assistance, and the assistance for [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Pauper.] 10. Paupers 37 (2)-Remedy of town against husband able to furnish wife support. If a husband was of sufficient ability to sup-which recovery is sought in this action was port and maintain his wife, and by his neglect or default suffered her to become chargeable as a pauper in plaintiff town, seeking to recover support furnished her from the claimed town of her residence, the remedy of the town was not against the town of her legal residence, but against her husband, under G. L. 4230. furnished to her for herself and those two children as her family. Danville v. Hartford, 73 Vt. 300, 50 Atl. 1082. She did not then have money or other property with which fully to support herself and these two chil dren. The record states: of the poor of the town of Cabot gave the following written notice, as required by section 4220 of the General Laws, to the respective overseers of the poor of the towns of Lyndon and St. Johnsbury, and the only difference is that one was a notice to the town of Lyndon, and the other a notice to the town of St. Johnsbury. The Lyndon notice is in the words and figures following." "That on December 10, 1917, the overseer A copy of that notice then follows. [1] It is urged in defense that the notice to Exceptions from Washington County Court; the town of St. Johnsbury was insufficient, Fred M. Butler, Judge. because the notice set forth in the record says Action by the Town of Cabot against the "that their last-known residence in this state Town of St. Johnsbury. Judgment for de-selves, was in the town of Lyndon," etc. It is for the space of three years, supporting themfendant, and plaintiff excepts. Affirmed. argued that this in itself should be sufficient Argued before WATSON, C. J., and POW-to dispose of the case; and that under such ERS, TAYLOR, MILES, and SLACK, JJ. a notice the town of St. Johnsbury was not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |