Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1899-02-24
THE BARNA A. CLARK CASE.
Judge ROwell sustRIns the Demurrer OF
the Defendant suit Was Brought
Prematurelv.

PremRturely.
Judge John w. Rowell, member of
the supreme court, handed down a decis-
ion in the case of Helen b. Clark against
the Employers Liability company Monday
sustaining the demurrer of G. G. Fits,
counsel for the defendant, to the decara-
ton of Waterman 81 Martin, counsel for
the plaintiff. The decision necessitates
the filing of new declaration by the plain
tiff. The las. verdict of the county court
was for the plaintiff to recover $4,000.
This verdict was reversed by the supreme
court, and the plaintiff thereupon filed
new declaration to meet the opinion of the
court. To this declaration the defendant
filed a general demurrer. The objections
and the opinion of the court are given in
the decision, which is as follows:
"The defendant objects that the count does not
| allege that the insured died within 90 days from
| the time of injury. II is considered that the
| time ascribed to the fact of death. namely, Sept
3d. 1895, does not apply, as claimed, to the allega
| tion of the fact and manner of injury that i'm
| mediately follows. But it is subsequently alleged
| that Affirmative proof Of claim was furnished
| the defendant within seven months from the hap
pening Of the accident, to wit, at the time OF the
date of this writ. The defendant claims that this
| means that said proof was furnished on the day
of the date of the writ, which is Feb. Il, 1896,
| and we think that IL so. From this il appears
| that the accident happened within said 30 days,
for seven months from the date of the writ
would 20 back only to July Il, which is less than
80 days before Sept 80 the alleged date of death.
This, II Is true, Is augmentation, but that can
| be reached only by special demurrer
1T Is alleged to be a provision of the policy
| that no legal proceedinrs for recovery thereun-
der should be brought within three months after
| receipt of proof at the defendants office The
allegation being that proof was furnished OH the
| day of the date OF the writ, the defendant OBJ.
| jects that the suit was prematurely brought and
this objection is sustained IL said imitation Is to
have effect The plaintiff claims it is void but the
| authorities seem 70 be otherwise" He cites sew
eral authorities and continues: And on principle
| there would seem to be no difference between
| stipulation that the action shall not be brought
| before certain time and that 1t shall not be
| brought after a certain time, and all argue that
| the latter stipulation is binding. The fact that
| the time when the proof is alleged to have been
| furnished s laid under a vi1elicit does not obvi
ate this objection, for in pleadingthe time aleg-
ed Is taken to be the true time though laid under
videlicit. although in proof the party might not
| be bound by it.
The defendant further objects that the count
does not allege that the action was brought with
| in one year from the date of the accident. This
objection is not sustained for have seen, it
| appears that the accident happened as late as
| July - 1895 and the writ is dated Feb 10, 1896,
from all OF which it sufficit ntly appears that the
action was seasonably brought
Demurrer sustained and said count adjudged
| insufficient in the respect named. The plaintiff
asks for and has leave to amend on the usuaI
| terms