68 F. 873 | 8th Cir. | 1895
This writ of error was sued out by the American Employers’ Liability Insurance Company, the plaintiff in error, to reverse a judgment which was recovered against it in the circuit court of the United States for the district of Colorado on an accident policy of insurance. The material provisions of the policy-are as follows:
“The American Employers’ Liability Insurance Company, * * * in consideration of the warranties made in the application for this policy, and of thirty dollars, does hereby insure AVilliam P. Cousley, * * * residing in Denver, county of Arapahoe, and state of Colorado, by occupation a contractor (classified by the company as ordinary), for the term of twelve months, ending on the sixth day of May, eighteen hundred and ninety-three, at 12 o’clock noon: (1) In the sum of five thousand dollars, against death resulting from bodily injuries effected during the term of this insurance through external, violent, and accidental means, which shall, independently of all other causes, result in death within ninety, days from the happening thereof. (2) If such injuries shall, within three calendar months from the date of his sustaining the same, be the direct and sole cause of the loss, by actual separation at or above the ankle or wrist, (of) both feet or of both hands, or of one hand and one foot, or the irrecoverable loss of the sight of both eyes, the company AVill pay to the insured, if he survives the same, the full amount of the principal sum of this policy ($5,000), which payment shall terminate the policy. (3) If such injuries shall be the sole cause of the loss within three calendar months, by actual separation at or above the ankle or wrist, of one hand or one foot, the company tvill pay to the insured, if he survives the same, one-half of the principal sum of this policy ($2,500), tyhich payment shall terminate the policy. (I) If such injuries shall immediately and Avholly disable and prevent him from prosecuting any and every kind of business pertaining to his occupation above stated, and does not cause the loss of limbs or eyes as above, the company will pay to the insured a sum not exceeding twenty-five dollars per Avcek for loss of time, and not exceeding fifty-two consecutive tveeks. In case of death under the provisions of this policy, the company will pay the principal sum to W. IJ. Barr, his nephew, if surviving; in- event of his prior death, to the legal representatives of the insured: provided, further, that in case of death resulting from injuries wantonly inflicted by the insured, or inflicted and caused by him while insane, the measure of this company’s liability shall be a sum equal to the premium paid, the same being agreed upon as in full liquidation of all claims under this policy.”
The insured sustained certain injuries on May 20, 1892, by falling from a platform in a building which was in process of construction in the city of Denver, and died four days thereafter, as it is claimed, from injuries resulting from such fall. A suit was brought on the policy by William P. Barr, the defendant in error, to whom, under the aforesaid provisions of the policy, the same was made payable in the event of the death of the assured, and a judgment was recovered against the defendant company for the sum of $5,626.58.
One of the principal errors assigned is the action of the trial court in sustaining a demurrer to the second defense which was pleaded by the defendant company. That defense was, in substance, as follows: The defendant averred that it held itself out as insuring preferred or selected risks in professional and mercantile classes,
It is somewhat difficult to comprehend the precise nature of the defense intended to toe stated in the foregoing paragraph of the answer. We shall assume, however, that; the defendant company intended to make two defenses: First, that the contract was not fully consummated in the lifetime of the assured; and, second, that, if fully consummated, the assured was guilty of such a concealment of material facts, or made such false representations, as rendered the contract voidable at the election of the company. Conceding, for the purposes of this decision, that it was proper to plead both of the aforesaid defenses in a single paragraph of the answer, and that it was not necessary to state the defenses separately, still we think
The second defense above mentioned, which is suggested by the answer, is equally without merit. If the assured concealed any material fact which he should have made known to the company, or if any warranty was broken, the plea interposed fails to show what material fact was so suppressed, or what warranty, if any, was broken. Cousley’s application for insurance, which is set out in full in the pleadings, seems to contain full and specific answers to all of the questions which the company saw fit to propound, and, if any of the answers so made were false, the fact is not averred in the plea. Among other things, the assured described his occupation as being that of “supervising contractor,” and it was while following that occupation that he sustained the injuries which are alleged to have» occasioned his death. Moreover, the company’s prospectus showj
It is further assigned for error that the court erroneously instructed the jury with reference to the right of the defendant company to exhume and examine the body of the assured after his death. The facts pertinent to a proper understanding of the merits of that contention are as follows: The policy sued upon contains the fob lowing provision, to wit: “Any medical adviser of the company shall be allowed to examine the person or body of the assured, in respect to any alleged injury, as often as he requires.” On the morning after the assured died, notice of his death was given to Francis A. Chapman, the company’s agent, at ids office, in Denver, Colo., by the present plaintiff, William P. Barr. The agent was asked on that occasion by Mr, Barr what should be done in reference to the matter, and what proofs, if any, should be furnished. To this inquiry the agent replied that nothing would be necessary, except to obtain a letter from the attending physician. A full statement of the cause of Cousley’s death was subsequently made by the attending physician, and the same was delivered to the company, together with other proofs of his death, and proof of the nature and character of the injuries which he had previously sustained. Some three or four weeks after the deceased had been embalmed and buried, an application was made by the defendant company, to the widow of the deceased, for leave to exhume and examine the remains of her deceased husband, and such permission was by her denied. IJnder these circumstances the circuit court instructed the jury, in substance, that the demand for an autopsy was not made within a reasonable time. We are of the opinion that, if the defendant company intended to rest its defense to this action on the ground that it was denied the right to examine the body of the deceased, it should at least have shown that it sought permission from the plaintiff to make such an examination when if. was within his power to comply with the request There is no evidence in the present record tending to show that the plaintiff refused to allow the body of his deceased uncle to be examined on any occasion, either prior to or subsequent to its interment, or that it was within Ms power to allow the body of the deceased to be exhumed and examined when such a request was preferred. For this reason, if for no other, we think that the exception to the charge last above mentioned is without merit. The comi>any certainly could not defer its request for leave to examine the body of the deceased until it was beyond the plaintiff’s power to afford the company that privilege, and then plead the denial of the privilege as a defense to the action.
The remaining assignment which we deem it necessary to notice relates to a portion of the charge whereby the court instructed the jury, in substance, that the plaintiff, William P. Barr, had the right to recover on the policy without proof of an insurable interest in the life of his deceased uncle. It will be observed that the policy in