18 Colo. App. 30 | Colo. Ct. App. | 1902
This suit was upon a policy of life insurance. The defense was based upon a provision in the policy that if the insured should use alcoholic, narcotic or other stimulants so as to impair health, or cause death thereby, then the policy should' be null and void. It
The chief contention of defendant, however, upon which it relies for a reversal of the judgment, grows out of the proofs of death. It appears that in what is called the certificate of the attending physician, appended to and made a part of the proof of death, made out upon a printed form furnished by the company, the physician, in answer to the printed question, “State the remote cause of death and all predisposing features,” stated, “Paralysis of the heart, due to an overdose of phenacetin.” It was claimed that the beneficiary, wife of the deceased, adopted and was bound by this answer, because in the statement made out by her, constituting a part of the proof of death, also made out upon a printed form furnished by the-company, in answer to a question as to the cause of death, she replied: “See physician’s statement.” It was shown by the tetimony of the physician himself, who made out the certificate, that he was not in attendance upon the deceased before or at the time of his
In support of its contention, defendant relies chiefly upon two authorities: Campbell v. Charter Oak Ins. Co., 10 Allen (Mass.) 213; Irving v. Excelsior Ins. Co., 1 Bosw. (N. Y.) 507. As we read them they do not support its position, but on the contrary are as far as they go in accord with the general weight of authority. They do not hold that an incorrect statement in proofs of loss cannot be disputed or corrected. The extent to which they go is that the correction or denial could not be first made known to the insurers at the trial of the action to recover for the loss, and for the obvious reason that the correction or denial at such a time would be a surprise. In referring to these cases, the United States supreme court said: “Neither of the cases can be considered as deciding that the insured is estopped by an erroneous statement of a fact in the proofs of loss furnished by him, even though the true statement of that
We think there was no error in the rulings or findings of the court, and the judgment will be affirmed. ■ Affirmed.