*1 London Co. v. Officer 11,131. No. Officer, and Accident Co. v. Guarantee
Executor. Rehearing January 16, 14, 1925. denied 1926. Decided December Judgment plaintiff. insurance Action on life Affirmed. Party president The
1. Witnesses —Adverse —Cross-Examination. general agent corporation underwriting which was the aof having charge of that branch an insurance states, managing agent,” in four is “a business ’21, concerning in section C. L. cross- that term is used parties. of adverse examination Although by party bound the adverse Examination. 2. witness, testimony and favorable elicited his own evidence cross-examining leading questions distinctly methods motion, such, under con- in the case should stricken fully developed by party’s examina- the adverse sideration was witness, hence should stand. tion of the same Interrogatories. special Jury Special submission 3. Trial — — interrogatories jury to a rests the sound discretion trial court. Interrogatories. Jury Special are few and Where issues
4. — request fully instructions, simple covered the court’s interrogatories, special for a submission properly refused. Adjudicated Questions. Appeal In an action on a 5. Error — having disposition there life insurance been a insane, appel- hearing, on a former defense of suicide while again court declines to consider it. late which, derangement Insurance —Suicide n — Insanity. The mental 6. charged crime, supports case of one the defense in the insanity, if found to exist in the insured in an accident covering death, will, when the insured has taken his own life deranged, make the an accident under the while so suicide and decisions. statute London Co. v. Conflicting Requests. Requested cov- instructions' Instructions — — given by might court, ered the instructions or which therewith, properly construed as in conflict are refused. *2 Insurance —Notice —Instructions. In an action on a life insur-
8. policy, submitting ance questions instructions of the court delay, time, giving of excusable and reasonable in required by policy, approved. notice the terms of the Pleading adjudication —Law 9. the Oase—Issues. A former joined, case that same issue was is the law of on the case below, stipulation joined re-try a re-trial and a “on issues pleadings” reversal, in the in case of a is an admission that joined. issue was 10. Insurance —Notice —Waiver. In an action on a life insurance policy, company agents conduct of the and its held to constitute compliance waiver of strict with the contract notice death. Stipulation In Non-Waiver. an action life Notice— on a 11. policy, stipulation insurance of non-waiver not to relate held already place. back to waiver of notice which had taken In Notice—Admissions —Waiver. an action on a life insur- 12. policy, liability part ance an admission of on the of the com- pany which could not exist there had been no waivers notice, equivalent to an admission of such waiver. —Defense n — n Technical Policy Suit on Rules. an insur- Where 13. taking premiums year ance after from the assured year, urges unjust, inequitable, after purely his though every lawful, defenses to technical purely technical, weapon a suit on the against is allowable such defenses. Policy. permit Notice—Public Public will not 14. the en- impossible forcement of or unreasonable' conditions as to notice of death under a life insurance Rehearing.
On Appeal Rehearing. petition rehearing A Error — for which merely reargument questions already presented, character, which is discourteous will be stricken n files. Error to the District Court County, George Weld Hon. Bradfield, Judge. H. Hutton,
Mr. William E. McCay, Mr. Bruce B. plaintiff in error. London Co. Officer Harry Ralph Haynes, Dougherty, L.
Mr. N. Mr. in error.
defendant
En banc. opinion court.
Mr. Justice Burke delivered the against brought by This action defendant error plaintiff parties referred error. The are hereinafter defendant, they appeared in the trial to as court, company. asor executor and the company,
Deceased carried a injuries provided bodily loss of life “from case of through period accidental effected within the means, directly independently causes” other injuries sum; pay principal but if the would *3 insane, insured, sane “the measure were inflicted company’s liability equal sum the last shall be a agreed liquid- paid, being upon premium the same full Defendant, policy.” ation while in- claims under this sane, executor sued the committed suicide. The gave judgment premium last and the trial court for the only. judgment The executor came here on error and policies provid- there held that accident was reversed. We are, ing payment in in that event case of death 2532, extent, policies, and that section life insurance 177, Sloss, v. 49 L. Colo. as construed Woodmen C. 831, applied; hence, (N. S.) after L. R. 112 Pac. 31 A. year, insane is no defense. suicide while the first Co., Pac. 499. The Accident 220 v. Colo. judgment the exec- entered for retried below cause was judgment $9,450. To review that a utor on verdict for brings error. assignments seriously thirty-seven as are Such may worthy argued best be examined consideration re-division, i. e.: trial court a re-statement under following particulars: error reversible committed Permitting be cross-examined under the a witness to (1) London Co.
statute; findings; (2) refusing request (3) special a refusing defense; to consider suicide while insane as a giving wrong (4) insanity; (5) a definition of refusing concerning defendant’s instructions 5 and 6 bur- proof; (6) giving concerning den of instruction notice of loss and of claim. (section 6570, 1921) provides
1. Our statute L. C. “superintendent managing agents any corpora- tion, party may which is a to the record” called party interrogated adverse “as if under! cross-examina- tion,” party calling “but for such examination shall thereby, not be concluded rebut counter testimony.” stating Plaintiff, that he acted under statute, examined, objection, called and over defendant’s Daly, president one corporation C. J. of a which was the underwriting agent company in states of Colo- rado, Wyoming, and New Idaho Mexico.
The statute “managing agent” does not define the term specifically and we need large do so here. Most cor- porations bearing have numerous officers various who titles properly Certainly come within president the term. corporation general underwriting agent was the company, for an charge insurance and as such had of that branch of the states, business in four would be “managing agent” meaning within the of the statute. Otherwise the term general must be manager limited to one and we legislature think it clear that never intended any such limitation.
However, if we now sustain the contention that this wit- statute, ness was not within the he plain- would become *4 ordinary tiff’s witness in meaning of that term. We plaintiff by would then hold bound testimony such of his as was adverse and strike out such as favorable, was by leading questions elicited or distinctively other cross- examining methods. But as all fully of it so elicited was brought by out defendant’s examination of the same wit- time, at objection ness the same specifically (as waived 1), the admission of Exhibit and as adopts it London Co. ruling judgment. all, such a in manner affect the could no many theory and the issues were On plicated company requested submission to properly special interrogatories. request That was seven simple, fully denied. The issues were few and interrogatories by covered the court’s instructions. The simple questions neces- fact submitted concerned either sarily instruc- in the involved verdict covered likely tions, questions confuse or mixed of fact and law they jurors verdict and mislead the and invalidate might interrogatories special return. The submission of There was rests the sound discretion the trial court. here no abuse of discretion.
3. The maintains that there was no by accident, limit- death that the verdict should have been premium paid, instruc- ed to the last and that defendant’s (if limiting erroneously it, toin so All this refused. was correct) insanity the court’s amounts definition of was nothing attempt re-present more than an the defense disposed suicide while That insane. opinion re-
our former adhered the conclusion hearing. judg- We have no doubt of the correctness of ment and decline to reexamine it here. having injury,
4. This court decided that death from insane, self-inflicted while accident under the death court, instructions, terms of this trial in its de- meaning fined the word “insane” as unsoundness of “that prevent understanding mind which would insured from physical consequences act, nature and if fore- of his seeing meditating physical consequences would prevent understanding the insured from its moral nature aspect.” company objected to this instruction and it asked lieu of an instruction that if deceased intended probably produce to kill himself and knew his act would injury then he was not insane and the was not an In accident. other words is here contended that in- sanity bring which will make suicide an accident and within the terms of the statute as a forbidden defense ato *5 v. Co. London entirely something
suit a life is different insanity in a homicide which constitutes a defense objection case. The the court’s instruction was over rejected. requested ruled and instruction defendant’s We ruling In murders committed think that correct. most committing persons perpetrator insane knows he is act, result, probably expects and will and knows held ac intends that shall. Nevertheless he not be derangement pre countable afflicted with a mental which legal any conception aspects of the cludes of the moral and killing permits in and him to undertake it with the same killing He insect. difference he would undertake the an mentally capacity is if so that he insane diseased has no ability to distin to understand nature of act and no guish ; right wrong applied thereto other between which, juris insanity is in most wise he sane. is Such dictions, including this, responsibility one relieves from 100; Ryan 75, p. who takes human life. 16 C. J. sec. 1912B, 99, 104, People, 114 Pac. 50 Colo. Ann. Cas. responsibility is the which makes self- As it absence of accident, an the rule should destruction apparently applied here. make distinction Some courts unsupported think contended for defendant. We adopt court’s reason decline it. trial sound sufficiently specific. there was correct and Here definition insanity. ample evidence of such al- 5. The court instructed had leged complaint that his death in his testator came to “through 4, 1920, directly means in- accidental October causes, dependently As a of all other to-wit: a result of hand, pistol his held in own while he was tem- shot from wholly irresponsible porarily insane and his acts and conduct,” upon plain- and that “the burden of allegations complaint, by prove the material of his tiff evidence.” Defendant’s preponderance instructions refused, merely proposi- 6, requested stated this confusing way. They were, more a different and tion in Co. v. might objection they con- moreover, open *6 defining court’s instruction as in with the strued conflict insanity. They properly refused. “In reads: Paragraph in 7 of
6. against happening hereby to any insured of accident event containing beneficiary, assured, written notice or sustaining person such name and address of the the full accident, shall accident, particulars of with full Chicago, Illinois, given company’s in head office reasonably possible.” early as
Paragraph part: “Affirmative reads in 8 of the company’s proof claim must also be furnished to of Chicago, Illinois, months' from in within two office head * * death, time of payable The will to decedent’s estate. appointed probated and the executor December alleged complaint “Plaintiff, as said exec- He his receiving early reasonably possible utor, as as was after to-wit, testamentary, day on 11th his letters said D'ecember, gave defendant, A. notice to form D. satisfactory it, manner the name and address of particulars full his said testator with of the accident re- sulting in said death.” days plaintiff five after obtained his said letters
“Within testamentary, defendant, he furnished in form and man- satisfactory it, proof ner affirmative of claim on based policy.” said supplied required by
“Final on form defend- regarding through ant the death of insured said accidental directly independently of means causes other particulars, company’s full and detailed were filed with the Chicago, Illinois, on, to-wit, day head office the 1st * * March, A. D. complaint facts,
Defendant demurred to the for want of pointing therein, therefor, appeared out as reason complaint specific there had been no pliance requirements with the of said policy. The demurrer was overruled and the com- London Co.
pany Thereby pleaded portion answered. to that complaint quoted denies above as follows: “The defendant early executor, all, that the as was as said or at reasonably possible, gave notice to defendant in form and satisfactory it, provided manner or as said all, any particulars resulting at accident death. plain- days
“The defendant denies that within five after testamentary tiff obtained his letters he furnished defend- satisfactory ant and manner to it affirmative form claim, on said based proofs, regarding “The defendant admits that certain said insured were furnished the filed defendant and Chicago, Illinois, with the head office *7 1, 1921, about March but denies that said established through that the death of said insured occurred accidental directly independently means of all other causes.” alleged, in, separate defenses, It paragraph also that “Any read: misstatement the of Schedule comply Warranties endorsed hereon or failure with requirements contained herein will invalidate all policy.” claims plaintiff’s under the And that failure to comply with said 7 and 8 therefore invalidated policy ex!cept the premium as to paid, e., $25.00, the last i. liability its sum. admitted that replied answer, alleging Plaintiff that oral notice 11, 1920, given of December company, through its agent Daly, early reasonably possible as as was because he 9, first learned of 1920; the death October that he had knowledge long no thereafter; until he that get could 6, not until December when he letters, received his knowledge hence had no of said paragraphs until two months death; after testator’s days within a few of said death the had all the paragraph 7; information called for said that on Decem- 11, 1920, presented ber he the entire matter to defendant’s agent” (said Daly) “state who said he would refer toit general attorney on the liability of v. Officer London Co. sug- agent no claim or suicide; made that said case paragraph 7 and gestion said defense under defense; failure his thereby pany waived such due strictly paragraph comply 8 of the want inability provisions and his thereof his to learn the be- appointment; capacity until claim his to make pleaded of December as to the events facts cause reply was waived this defense. defendant had general facts May 1,1922, want of demurrer for filed May 6, That paragraph filed as to each thereof was reply by the far as the sustained court so demurrer was then, applied court fourth defenses and the to the first and motion, judgment in favor on its own entered plain- stipulated open court “that It was $25.00. Supreme prosecute from the Court tiff shall a writ of error Colo, herein, to have reviewed record State of Supreme prejudicial error and if said Court shall find thereupon against record, plaintiff in reverse said judgment proceedings, for further and remand the case defendant, having demurrer elected to stand on its therein, replication, replies in no several should and the against right prejudiced as trial to have a manner-be pleadings.” joined issues on! the record was the state of those matters
Such paragraph opinion under consideration when reported us the cause Colo. 217. was before foregoing support this record to There evidence justify allegations following fact and conclusions: *8 3, 1909, in was dated June and had by payment in force since that time been continued Daly Company. premiums customary It was annual to receive in for that claim such eases department, over to the defendant’s claim and turn them legal department, Denver, of which Mr. or Hutton was charge. department, legal department, Said claim investigate and handle such claims. authorized to Prior to 1920, Daly knowledge 11, had of testator’s death. December day that he believed testator “had some sort of hal- On Co. advised him life” and so take his caused
hicination writing, together the name of the Hutton in policy, holder, the name and address number of the dispute attorney, and plaintiff’s of claim likelihood and 23, 1920, December as to the effect of the clause. suicide Daly Haynes, executor, mat- attorney for the wrote next who the ter and that letter was turned over to Hutton day Haynes prejudice “without in case a claim wrote asserting filed” the suicide clause was a defense suggesting policy, December and no other. signed Daly Company a letter and Hutton sent Chicago office, giving the latter defendant at insured, name of the the date and number stating death, the cause of the insured “had been time,” ill health for some and that under his at- advice of torney claiming the executor was covered that “the January 6, 1921, Haynes the case.” Hutton wrote and the January 7,1921, Haynes Hutton, executor. wrote and Jan- uary 11, 1921, enclosing receipt Haynes, Hutton wrote plaintiff’s hereby stipulated Exhibit which reads: “It agreed, by and between London Guarantee and Ac- Company, Limited, London, England, cident and Kobert A. Officer, Officer, executor estate of Alexander V. deceased, action taken said insurance in investigating, (or) attempting adjust, (or) adjusting (or) defending any litiga- (or) claim and growing tion out said Alexander V. on or 4, 1920, about October shall not be construed as a company’s right waiver of said deny insurance liability, part, either in whole under its of accident insurance issued to said Alexander V. Officer effect at the time Officer, of the! death of said Alexander V. shall nor stipulation agreement execution of this be consid- ered rights a waiver of the of the estate of said Alexander Officer, deceased, V. under said Morgan,
“Dated at Colorado, Fort day this 9th of Jan- uary, 1921.
“London Guarantee Co., Ltd., and Accident “By.................................” *9 451 Co. v. Officer, Alexander V. estate of Robert executor of the A. Officer, deceased.” proofs Daly Company
February 24,1921, Haynes sent the receipted and which transmitted death for which of company. the Officeof Home the company’s 4, given ob- The over the court’s instruction policy in this jection, that the reads: “You are instructed containing name full requires case the that written notice alleged accident, sustaining person the address the accident, given to the particulars shall be with full of the may Chicago, early as be as Head Office requires af- reasonably possible; that the also defend- proof to the claim must furnished firmative Chicago from the months ant’s within two Head Office death; policy provides further date of the and such requirements there- comply the the failure to policy. in, will all under invalidate claims law, evi- a matter of “You are instructed as give explanation failure to dence shows a sufficient early pos- required accident, notice sible, proofs claim within or of the failure to furnish provisions are provided in then the time such reasonable applicable, would have a and the give time, circumstances, which to within under of claim. the notice file evidence,
“It all the is for the to determine from case, not, in this under all the circumstances whether claim, filing the notice of the accident and time.” were made within reasonable 8
The its instructions tendered lieu of this compliance provisions requiring strict with the instructions 8 of the Said objections in- to the court’s were refused and defendant’s rulings overruled. These correct struction were following reasons: overruling complaint, (a) demurrer thereon, former decision defendant’s failure stand our replication, which overruled demurrer *10 London Co. v. assign failure of errors, defendant to cross established as the law of the complaint case that the facts set forth in the replication, supported by evidence, the would re- quire judgment plaintiff, for sup- and there was evidence to port said facts.
(b) foregoing The by company was admitted the in its stipulation trial, for reversal, in case “on the issues joined pleadings.” in the compliance If par- strict with agraphs 7 and 8 recovery, of the was essential to failure by thereof pleadings. was admitted the There were joined, no issues judgment defendant should have had pleadings, the and our former decision should have been company for the irrespective question of suicide. (c) When, 11, 1920, Daly agreed on December with up principal point to take the with legal department company (Hutton), as was cases, custom in date, such and did so on the same 13, 1920, on December Hutton sent his memorandum to company (on which, notice, without further the com- pany later proof, furnished its forms for final without ob- jection comply paragraph failure to with said 7 of policy), prior stipulation of non-waiver of date January 9, 1921, company compliance waived strict paragraph. with stipulation of non-waiver did not ref matter, eh to back, this did not relate and the waiver already had place. taken
(d) The paragraph waiver claimed as to 7 of is not stipulation, saved the) only stipulation because the any was investigating, action taken adjusting, attempting adjust, defending, not or should right constitute a deny liability. waiver of its None of things these support Accept- are here invoked to waiver. ance of notice, oral rather than written in Denver rather Chicago, than part investigation, adjustment was no of an defense, acceptance or preceded stipulation. and that
(e) The paragraph waiver claimed as to 8 of the stipulation not saved furnishing because the proof blanks for acceptance affirmative claim and London Co. death, from the date after two months Daly agency direct through at instead of Denver investigation, Chicago, part an no Home Office adjustment defense. compliance paragraphs and 8
(f) If strict invalidity necessary preserve under it from thereof, liable paragraph 14 then the liability was there- Its $25.00 amount. admission 8 had been admission that 7 and fore an estoppel with, compliance waived, plied such or an relegated right deny facts, and it to the defense those *11 of suicide. Paragraphs a, b, c, d, f, supra, present
(g) rules e and Assuming strictly may that to technical. be said be just, not defeat meritori- such rules should invoked to a be defense, equitable insur- and what are the facts? Our ous code, 2532, part, is a of which said section L. 1921 ance C. 1913, passed said section had effect been p. 257, 1903; 55, chap. Chapter, 119, L.
since Section 59, 1908; 193, p. 1907; R. L. Section Section S. chap. 99, p. L. 1913. is
This was written in 1909. If suicide a defense now, reasons, was, a defense then. The it same provided liquidation suicide, e., i. amount in case of premium paid, $25.00, utterly is as to be last so trivial ample the fact that evidence of when the was writ- company no knew that suicide insane was ten while subterfuge sought by escape plain to a defense and theory “liquida- provision of law on the that the so-called support sufficient consideration tion” would furnish to plan formulated and that intent defense. with With premiums company took in mind this the testator against year year on his death defends after the claim ground successfully it has cir- his executor on the Every lawful, though purely tech- cumvented statute. against weapon
nical, such a defense. allowable (h) is uncontradicted written in this evidence There paragraph of this 7 and were record that London Co. v. Officer plied reasonably possible. Paragraph as far as with specify give given does who shall the notice. It was orally, reasonably possible, the executor as soon as was writing gave Daly, Daly promptly Hutton Chicago. Paragraph 8 at its home office proofs specify does not furnish “affirmative who shall they they of, nor shall nor consist claim” what shall writing. They executor be in furnished delivering Office, Daly, at them to its Home any, then, who failure if under forwarded them. sole these two was failure to furnish such within If that two months from date the accident. may requirement strictly be enforced when action within possible reasonably (which the time limited is not we think here) was the fact then if the meets an insured with ac- lonely spot body cident a where is not discovered months, recovery precluded. within two If such a con- may upheld tract be two month’s limitation it day’s upheld upheld with a two limitation. If as to this policy must, grounds, upheld on the same to an ordinary support life so the law will a defense policies upon to life insurance based a clause unreason- so unjust, subterfuge clearly able justify and so taking premiums payment, and the refusal as to public amount A constructive fraud. sound will *12 not tolerate such in contracts such a business. subject public policy
That such contracts are to the state, legislature may the that the abolish suicide as a de- policies this, fense to such insurance as that it has done so passage conformity of an in act substantial question, in act here provisions does it so such payment void, of a reduced amount in case suicide are subterfuges plain and that to avoid the intent of the act will courts, not countenanced have been laid down many in well highest reasoned decisions courts of the standing require and are so fundamental as to no review Notably principles re-statement here. these were an- language by in Harlan, nounced no doubtful Mr. Justice Co. in United States Supreme Court speaking Co., 27 S. Ct. U. Ins. S. v. Aetna Whitfield Life 578, 51 L. Ed. judgment foregoing is affirmed. reasons For the Campbell participating. Mr. Justice dissenting. Mr. Denison Justice opinion. agree
I am unable to correspondence the com- between it holds that In effect Denver, agent attorney Chicago in pany in Denver, equivalent in is oral notice to them based Chicago. in notice written proposition reduces the con- such a
Is not clear that Chicago” in “oral notice notice “written tract from effect, destroys power a so, to make If Denver”? particular requiring form. notice contract Rehearing. On
Per Curiam. ap-
Having file this in which to obtained additional time urge reasons plication, ten counsel for error ap- why incorrect, opinion half of their devote but first, question plication decided which is Co., which we v. Accident 220 Pac. In decline to reexamine. ad-
have herein reaffirmed and portion application noth- thereto that contains dition' ing reargument new, is mere therefore, gross presented. is, It violation
hertofore court, so discourteous the rule of this addition is disposition now at least the made of it. as merit Rehearing application is files. stricken denied.