etc., purposes, not carried out. In this cod- I stated in her will and her revocation of the icil, as well as in the third codicil, she revokes a gift, correctly using the word "revoke." The probability is, it seems to me, that had she desired to revoke the provision in remainder she would have done so in like manner. Again, in order to ascertain the intention of testator, the whole testamentary dispo sition, will and codicils, so far, as relates to the subject-matter in question, must be read together. Graydon v. Graydon, 25 N. J. Eq. 561. In clause A of the will she stated her intention that at the death of Mary A. Thomas, the property should be appropriated for hospital or memorial purposes; and in clause B she reiterates this. And in clause D in the last codicil she again shows that she still has in mind that she has made this hospital or memorial provision, and that it is still in force and effect, for she makes another provision in aid or benefit of it. The force of such repeated manifestations of interest and intention is pointed out in Lyon v. Clawson, supra. In view of these considerations, therefore, it seems to me, not merely that there is no clear indication of any intent to revoke the attempted gift in remainder, or to enlarge the gift to complainant, but that the indication is rather that no such intent existed. gift to Jessie Townsend, who "does not need it," was for the purpose of assuring the payment of the mortgage. My belief is therefore that the intention of testatrix would be correctly expressed by paraphrasing the language thus: "I revoke the bequest of $3,000.00 to Jessie Townsend, because I feel that she does not need it, and I direct that this sum be used toward the payment of the mortgage on the Asbury Park property, which, as I have already provided in my will, is to be delivered to Mary A. Thomas free of incumbrance." It is of course, possible to construe the word "unconditionally" as properly (though unnecessarily) used in its accepted legal meaning, an added statement out of abundant caution that the life estate was left to complainant without conditions. Such was the case in Kratz v. Kratz, 189 Ill. 276, 59 N. E. 519, where testator left to his wife, for life or widowhood, all "my lands, tenements, and hereditaments * and all my interest in real estate, mortgages, notes, absolutely and unconditionally." [5] It is not requisite, however, to determine in which of two or more possible meanings the word was used by testatrix. It is sufficient for the determination of the case at bar that it was not intended to denote a gift of the fee to complainant, and this of course, leads to a decree dismissing the bill. (94 Vt. 445) SPAULDING et al. v. MUTUAL LIFE INS. (Supreme Court of Vermont. Washington. Pleadings 217(1) Demurrer relates back to first substantial defect. A demurrer to the pleading at any stage relates back through the whole record and attaches to the first substantial defect in the pleadings on whichever side it occurred. It is true that "unconditionally" is not an apt word to express freedom from incumbrance, and that testatrix has elsewhere in the will shown her knowledge of apt wording therefor and actually provided therefor. But, on the other hand, the sentence at the end of clause B and two instances at the beginning of the first codicil, show that in those cases, when desiring to express an intention to give the beneficiary complete ownership, she used the word "absolutely.". The probability is that she would have used the same word here had she desired to express the same intention, especially since it seems clear from the wording of the last sentence in clause B that she was there using her own language; whereas the misspelling of "incumberance" may indicate that she was in that case using an acquired phrase with which she was not perfectly familiar, and to the use of which she had not become more accustomed at the later date of the second codicil. "Unconditionally" is by no means an unheard-of means of expressing freedom from incumbrance. Lyon v. Clawson, supra, also points out the inferences to be drawn from a consideration of the actuating idea of the testatrix in the making of the change by codicil. Here the mind of testatrix was intent upon the fact that the A previous judgment is conclusive against Asbury Park property was mortgaged, that a subsequent suit on the same cause of action she desired to have it pass free from that not only as to matters actually tried, but as or other incumbrance, as she had already to all matters which could have been litigated 2. Judgment 744-Denial of recovery on insurance policy not conclusive against another policy on same application. Where an insurance company issue two policies on the same application in which the benewere different, a judgment on one ficiaries policy for recovery of premiums paid only, because of misstatements in the application, is not conclusive, but is evidence only in an action on the other policy, which is a different cause of action. 3. Judgment 713(2)-Decision of different cause of action conclusive only as to matters actually litigated. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) MILES, J. This is a suit upon a policy of insurance upon the life of Orvie M. Jones, and is one of two policies for the sum of $5,000 each, numbered respectively 2,171,545, and 2,171,547. Both policies were issued August 10, 1914, and were alike when issued; but on September 9, 1914, No. 2,171,547, the policy now in suit, was changed by making Jennie L. Jones, wife of the insured, sole beneficiary in place of herself and the children of the insured, as the policy was originally written. The defendant pleaded in both actions that certain answers in the application material to the risk and upon which the defendant relied in issuing the policy declared upon were false, and that the insured well knew that they were not true, and that he made them with intent to deceive and defraud the defendant. To this answer the plaintiff replied, and issue was thereupon joined. After issue was joined the suit on policy numbered 2,171,545 was tried by jury, and as a result of that trial a verdict was rendered for the plaintiff to recover the full amount of that policy, and judgment was rendered thereon and for the plaintiff in that suit to recover his costs. The case was taken to this court, where the judgment was reversed, and judgment was rendered for the plaintiff to recover only $489.85, a sum tendered into court by the defendant, being the amount of the premiums paid by the insured upon that policy, and interest on the same to the date of the tender, with costs to the defendant. After the final rendition of that judgment it was pleaded in bar of this action as an estoppel. To this answer the plaintiff replied, denying that the cause of action in that suit was the same as the cause of action in this, and that both policies were issued upon the same application, and averring that those answers in the application which the defend ant claims to have been false were made under the instruction and by the advice of the defendant's medical examiner, upon which the insured relied in making them, and that he understood they were correct when he made them. To this replication the defendant demurred, and also filed a motion for judgment, on the ground that the replication was manifestly false, in that it denied that both policies were issued upon the same application. The court below sustained the demurrer as to the replication and rendered judgment for the plaintiff for only the sum tendered into court by the defendant and for the defendant to recover its costs. This was error, and the exception of the plaintiff to this action of the court was well taken. [1] At whatever stage of the pleadings a demurrer is taken it relates back through the whole record and attaches to the first substantial defect in the pleadings, on whichever side it may have occurred. Lee v. Follensby & Peck, 83 Vt. 35, 74 Atl. 327, 138 Am. St. Rep. 1061; Currier v. King, 81 Vt. 285, 69 Atl. 873; Dunlevy v. Fenton, 80 Vt. 505, 68 Atl. 651, 130 Am. St. Rep. 1009. On demurrer to a subsequent pleading it is the duty of the court to look to and adjudicate upon all the prior pleadings in the case (Dunklee v. Goodenough, 65 Vt. 257, 264, 26 Atl. 988), and judgment should be given against the party whose pleading is found first to be defective (Mussey v. Bates, 65 Vt. 449, 27 Atl. 167, 21 L. R. A. 516). The [2] On examination of the pleadings in this case, the first defect found occurs in the defendant's answer setting up the estoppel to which the replication demurred to applies. The matters therein stated fail to show that the cause of action in this suit was the same as the cause of action in the former suit. On the contrary, they show that they are not the same. They show that this action is upon a cause different from the one upon which the judgment was rendered. $5,000 sought to be recovered in this suit is not the $5,000 sought to be recovered in the former suit, and the beneficiary here is not the same as that named in the other policy. The promise and undertaking in one is not the same as the promise and undertaking in the other, and each is independent of the other. The cause of action in one being different from the cause in the other, the judgment in one could not be pleaded as an absolute bar in the other, but could only be used as evidence. S. Pac. R. R. v. United States, 168 U. S. 1, 57, 18 Sup. Ct. 18, 42 L. Ed. 355, 380; State v. Sargood, 80 Vt. 412, 68 Atl. 51, 130 Am. St. Rep. 992; Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184; Powers v. Grammar School, 93 Vt. 220, 106 Atl. 836; Gilley v. Jarvis, 109 Atl. 41. [3] The error into which the defendant falls arises from a failure to distinguish the 155(5)-Defendant held not to have opened door by answers to testimony as to his liability insurance. difference between the effect of a judgment as [ 3. Evidence In the former case the judgment, if rendered ed for that purpose. But when the second action between the same parties or some of them or their privies is upon a different claim or demand, the judgment in the prior ac tion operates as a bar only as to those matters in issue, or point controverted, upon the determination of which the findings or verdict was rendered. In the latter case the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been shown under the pleadings. It is only upon matters actually litigated and determined that the judgment is conclusive, where the causes of action are different. Tudor v. Kennett, 87 Vt. 99, 88 Atl. 520; Blondin v. Brooks, supra; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. This holding renders it unnecessary to pass upon the sufficiency of the replication, or to consider the other questions discussed in the briefs of counsel, as the demurrer is sustained as to the defendant's answer of res judicata to which the replication is a reply. The answer is adjudged insufficient, the judgment is reversed with costs to the plaintiff, and the cause is remanded, with leave to the defendant to replead. (94 Vt. 378) BIANCHI v. MILLAR. (No. 238.) (Supreme Court of Vermont. Washington. Oct. 5, 1920.) 1. Evidence 474(8)—Opinion by defend. ant's wife as to speed of plaintiff's automobile admissible. In action for damages to plaintiff's automobile in collision defendant's wife was qualified to express an opinion as to the speed of plaintiff's car at the time, although it was dark, and plaintiff's car, with its light shining in her face, was coming directly towards her. In an action for damages to plaintiff's automobile in collision with defendant's, defendant, when on the stand as a witness called by plaintiff, held not to have opened the door by certain answers to testimony as to his carrying liability insurance, which was irrelevant to any issue in the case. 4. Trial 121 (2) - Argument submitting whether or not glass came from defendant's headlight not improper. In an action for damages to plaintiff's automobile in collision with defendant's, action of defendant's counsel in argument in submitting to the jury whether or not the glass seen by witnesses came from a headlight on defendant's car was not improper on the ground that there was no evidence to connect the glass with the lamp; circumstances supplying such connection. 5. Trial 178-On motion for verdict, evidence must be viewed favorably to defendant. On plaintiff's motion for directed verdict, the evidence must be viewed in the light most favorable to defendant. 6. Municipal corporations 706 (6, 7)—Negligence and contributory negligence held for jury. In an action for damages to plaintiff's automobile in collision with defendant's, case held for the jury both as to defendant's negligence and plaintiff's freedom from contributory negligence, important facts in contro versy. 7. Negligence 80-Least contributory negligence bars recovery. There can be no recovery for negligent inthe least degree to the accident. juries if plaintiff's negligence contributed in Exceptions from Washington County Court; Zed S. Stanton, Judge. Action by A. A. Bianchi against C. F. Millar. Verdict and judgment for defendant, and plaintiff excepts. Judgment affirmed. Argued before WATSON, C. J., and POW- Washington street runs in a southerly di 2. Trial 127-Whether either party to automobile collision carried insurance irrele-rection and up a grade in the vicinity where the accident occurred. The time was Sun vant. In an action for damages to plaintiff's automobile in collision with defendant's whether either party carried liability insurance was irrelevant to any issue. day evening, about 9 o'clock. The defendant, accompanied by his wife, was on his way home from South Main street in his automobile. His route took him easterly over For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) fendant was allowed an exception to the asking of the question, and the court instructed the jury to disregard anything in relation to insurance-that they had nothing to do with that. The plaintiff was allowed an exception to the court's cautionary statement. It is argued that these exceptions present reversible error. Church to Washington street, thence up, excluded under exception. Thereupon the deWashington street a short distance to Academy street, and thence again easterly along the latter street. He had turned onto Washington street, and was proceeding up the grade toward Academy street behind a team. The plaintiff was driving his automobile down Washington street. The track of the electric railroad at the place of the accident is nearly in the center of the street. The street was lighted, and there were headlights on both cars. The speed of the automobiles, their precise location at the time of the collision with reference to the center of the street and the junction of Washington and Academy streets, as well as various other circumstances connected with the happening of the accident, were in dispute. The evidence of each tended to show that the collision occurred through the fault of the other. [1] Against the objection that a sufficient foundation had not been laid, Mrs. Millar was permitted to testify on behalf of the defendant that she had some idea as to the rate of speed of the plaintiff's car at the time of the collision, and that she would say it was 30 miles an hour, to which the plaintiff excepted. The claim now made is that the witness was not qualified to express an opinion, in view of the fact that it was dark and the car, with its lights shining in her face, was coming directly toward her. This is not a sufficient basis of reversible error. It is not claimed, nor could it well be in view of her testimony, that Mrs. Millar was not as well qualified as any one could be to judge of the speed in like circumstances. The opportunity to judge of the speed of the car by comparison with stationary objects would be impaired and may have been wholly lacking; but there would still be the element of time required to cover a given distance, the force of impact with the defendant's car, which the evidence tended to show had been brought to a standstill, and the speed at which the car passed, to say nothing of the distance covered after the collision before it came to a stop. The objection goes to the weight, rather than the admissibility, of the evidence. Moreover, the witness had already given the same estimate of speed in an answer that was not excepted to. Manifestly whether either party carried liability insurance was wholly irrelevant to any issue in the case. It is contended that the defendant "opened the door" by certain answers when on the stand as a witness called by the plaintiff. Our attention is directed to certain pages of the transcript where it appears that the plaintiff was at tempting to show by the defendant the allegations of the declaration in a suit brought by the latter against the former on account of the same accident. In this connection, the defendant was asked if he personally brought a writ and caused it to be served on the plaintiff, to which he answered that he did not; that the insurance company did that. He was then asked if he told counsel who made the writ about the facts in the case, and answered, "After the insurance company had told me to go ahead." Though the fact that an insurance company was interested thus appeared in the case, it did not make the excluded evidence admissible, nor justify an attempt to get further irrelevant facts before the jury. With reference to the exception to the court's statement to the jury it is enough to say that it is not made to appear that the withdrawal was intended to include the answers volunteered by the defendant. The prejudicial effect of the offer and the discussion accompanying it, which had occurred in the presence of the jury, was evidently what the court was seeking to counteract to avoid a possible reversal on the exception taken by the defendant. It is unnecessary to consider what the effect would have been if the withdrawal had extended to the answers that were in the record without objection. [4] The plaintiff's evidence tended to show that the collision occurred opposite the entrance to Academy street, while that of the defendant placed it some distance lower down on Washington street. It appeared that the lamp on the left-hand side of the defendant's car was broken in the collision. Several witnesses testified to seeing broken glass between the car tracks immediately following the accident in the vicinity where the defendant placed the collision. It was varlously estimated as being from 3 to 10 feet up the street from the place where the front end of defendant's car was standing after the [2, 3] The plaintiff excepted to the exclusion of a question asked the defendant in cross-examination respecting insurance against liability in case of an accident. In substance the offer was to show that if there was a judgment against the defendant in this action, the insurance company would have it to pay; but that, if the plaintiff was insured and he recover from the defendant, he would not be entitled to any insur-accident. ance. The court having ruled against the plaintiff, the defendant was asked if he had his insurance policy with him, which was In argument defendant's counsel asked the jury where the glass was on the track. It being objected that there was no evidence to connect it with the broken lamp, Judgment affirmed. counsel submitted to the jury whether or the refusal of the court to set aside the vernot the glass seen by the witnesses came dict by referring us to the argument on the from the headlight. To this the plaintiff motion for a directed verdict. It is only was allowed an exception. Connecting evi- necessary to say that the disposal of that dence was not wholly lacking, but is to be exception controls the disposition of this, so found in the circumstances. The headlight | far as the grounds of the motion relied upon was "smashed" by the collision. Broken are concerned. glass was found on the ground in front of the car within the space where the defendant's evidence tended to show the collision occurred. Its presence there was not otherwise explained. It would be fairly inferable that the glass on the ground came from the broken lamp. By the argument excepted to the jury were only asked to say whether the inference should be drawn. [5, 6] The plaintiff argues an exception to the overruling of his motion for a directed verdict. The motion is based upon a state of facts assumed to be uncontradicted, while in several important particulars the facts relied upon were in dispute. It would serve no good purpose to review the evidence in detail. As important facts were in controversy and the evidence, viewed, as it must be on such a motion, in the light most favorable to the defendant, admitted of a conclusion adverse to the plaintiff, the case was plainly one for the jury, both as to negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff. [7] At the close of the charge the plaintiff took this exception: "We wish to except to what the court said about the contributory negligence of the plaintiff in that-if it contributed in the least degree to the accident." (94 Vt. 398) STEWART v. BARRE & MONTPELIER (Supreme Court of Vermont. Washington. Oct. 5, 1920.) 1. Carriers 316(7)-Negligence presumed on injury to street car passenger through fall of pole. Where plaintiff passenger on a street car was injured by the fall of a pole supporting one end of a span wire, proof of the cause of injury and other circumstances raised a presumption of negligence against defendant traction company in the absence of evidence showing it happened without its fault; the case being one for the application of the maxim res ipsa loquitur. 2. Trial 178 Res ipsa loquitur doctrine could be relied on in opposition to motion for directed verdict. In an action against a traction company for injuries to a street car passenger when a pole fell on him, the inference of defendant company's negligence arose when plaintiff gave evidence tending to show the fall of the pole, and the fact that the cause of the fall was in dispute on trial, or that plaintiff alleged a precise act of negligence, and failed to establish it with his proof, did not prevent plaintiff from The jury were instructed as to what would constitute negligence on the part of the plain-relying on the prima facie case established un The excep tiff in a manner not excepted to. der the doctrine of res ipsa loquitur in opposition to defendant's motion for directed ver dict. 3. Carriers 321 (3)-Requested charge in suit for injury to passenger when pole fell on him properly refused, as overlooking duty to inspect structure. In an action for injury to a passenger on a street car when a pole fell on him, defendant's request to the court to charge that persons charged with a duty in relation to the particular matter had a right to rely on the sufficiency of the pole to support the structure, unless there was something to call the attention to its insufficiency, held properly refused, as overlooking defendant company's duty of inspection. 4. Evidence 471 (24)-Testimony of injured plaintiff that he could not resume his trade was not opinion. In an action by defendant traction company's street car passenger for injuries, plaintiff's negative testimony to the question whether he would ever be able to resume his trade if his arm remained the same held not inadmis The plaintiff briefs an exception taken to sible as opinion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |