57 Colo. 235 | Colo. | 1914
delivered the opinion of the court:
Every contention raised in this case has been adjudicated in the case of Connecticut Ins. Co. v. Colo. Leasing, Mining and Milling Co., 50 Colo. 424.
This case involves one of the insurance policies issued at the same time, upon the same property, and to the same owner as in the foregoing case.
The defendant in error here issued its policy for $20,000, being one-third of the entire insurance taken upon the mill and property of plaintiff in error, on the 27th day of May, 1904. An exhaustive and detailed statement of the ease will be found in Connecticut Co. v. Colo. Co., supra, and it can serve no good purpose to repeat it here. The only question urged in this case is the admission in evidence of an application for insurance signed and delivered to the defendant company, after the delivery of the company’s policy to the plaintiff in error, and the consideration given by the court to one of the questions and answers contained in such application.
The record makes it clear that the application relied on by the insurance company in this case was not written, signed, suggested, or considered prior to the delivery of the policy in question, but was first requested hy the general agent of the company, in a letter written from his office in San Francisco, two days after the policy was issued and delivered by the agent of the company at Florence, Colorado, where this cause of action arose.
This very application was offered in the Connecticut Co. case and was there held to be inadmissible in any case, under the state of facts presented, and particularly so in that case, where it did not purport to be an application for the policy nor to the* company involved in the action. The court there said of this application:
“The defendant says the court erred in refusing to admit in evidence an application for insurance made by the plaintiff to a company other than the defendant, and delivered to MeCandless several days after the policy in this case was issued. That the application was inadmissible, even if made to the defendant, when it does not appear that the making of the application was a condition precedent to the policy taking effect or that it was made under an agreement on the part of plaintiff to make one after the issuance of the policy, is settled by this court in Loyal Mutual Co. v. Brown Co., 47 Colo. 467, [107 Pac. 1098], and when made to an entirely different company than the defendant, there is much more reason for not admitting it.”
This has been the consistent holding of this -court. In Loyal Mutual Co. v. Brown, supra, the court said:
“It should be borne in mind that it does not appear the execution of the application was a condition precedent to the policy taking effect, or that it was issued under an agreement on the part of Beach to*237 execute one afterwards. In suck circumstances tke rule of law is, tkat wkere a policy of insurance has keen issued witkout a written application, and without an agreement to execute one afterwards, an application subsequently delivered is not a part of tke contract of insurance. — Mich Ins. Co. v. Wich, 8 Colo. App. 409, [46 Pac. 687]; LeRoy v. Park Fire Ins. Co., 39 N. Y. 56.”
Tke court in tke case at bar instructed a verdict for the defendant company, and suck instructed verdict was based solely upon tke erroneous theory tkat such application was a part of tke contract of insurance, and therefore admissible, and that the answer to a specific question in such application was material.
Holding then, that the application was no part of tke contract of insurance, in tkis case, it is immaterial as to what questions and answers it contained. They were not under suck circumstances either representations or warranties and constituted no consideration or basis for tke issuance of tke policy. Tke questions raised by tke appellee having been fully disposed of and determined in this case, and, in the Connecticut Co. v. Colo. Co. supra, and the amount of judgment to be rendered exactly ascertainable from the record, the judgment is reversed and the cause remanded witk directions to enter judgment in favor of plaintiffs below, and against tke defendant below, in tke sum of one-tkird of tke amount found by tke adjusters committee to be tke actual loss by reason of tke burning of tke insured property, together witk interest from the commencement of this suit, and witk costs to be taxed.
Jitdgment reversed and remanded.
Musser, C. J. and Garrigues, J. concurring.
