8 Colo. App. 409 | Colo. Ct. App. | 1896
delivered the opinion of the court.
This is evidently one of a series of suits brought by the same plaintiff against various insurance companies to recover the loss resulting from the destruction of a brewery property in 1889. The insurance was taken out at the same time, to wit, early in February, 1889, through the insurance agency of Perkins, Hart & Co., of Denver. The total amount of insurance was $15,000, a part of which was represented on policies issued by the companies of which this firm were the representatives, and part of it by policies which that firm procured through Packard & PipeT, the representatives of the other corporations. The plaintiff is the same in the different actions. Probably the companies all concurred in contesting the validity of the policies, and it would presumably be ample for us to refer to the antecedent suit for a statement of the facts which have been developed by the litigation. To make the present appeal intelligible, however, we shall briefly set forth some of the most salient features of the controversy, point out the difference between the situation in the present case and that existing when the other case was before us, though referring generally to it and to the opinions therein
We shall make no attempt to follow and dispose of the thirty-eight different propositions stated in the arguments of counsel. The labor would subserve no useful purpose and we shall content ourselves simply with observing that we have carefully examined the record with reference to the law which is attempted to be applied, and have reached a general result which compels the affirmance of the judgment. We do not feel obligated to do more than dispose of the principal questions suggested. The alleged discrepancy between the application, the statements in the policy, and the facts as developed by the evidence, will be entirely disregarded. The findings relieve us of the labor. If the policy in suit had been issued on the original application and that put in evidence, we might then have been compelled to inquire whether its statements were borne out by the proof, whether they were warranties, and whether or not the company was released from any obligation because of an alleged breach. On the trial the present policy was assumed to have been issued on the second application. Strenuous objection was interposed to the introduction of the policy, because it was unaccompanied by this application. The objections were not well taken, because the application followed the issuance of the policy. Evidence enough to convince the jury that the policy had been delivered on the faith and strength of an agreement to furnish an application or statement as a basis, for the insurance was not produced. Under these circumstances, it is tolerably well settled the application is of little consequence, and is in reality no part of the proof which the plaintiff must make to sustain his case. Le Roy v. The Park Ins. Co., 39 N. Y. 56; Rankin et al. v. Amazon Ins. Co., 89 Cal. 203.
The jury found the policy was not issued on a written application. Perkins, Hart & Co. procured part of the insurance.from Packard & Piper, who were agents of other companies. Wich did not apply to Packard & Piper for this
It is wholly unimportant to determine whether Carleton was so far the representative of Packard & Piper in the procurement of the further insurance as to bind them by the statements which, he made to Wich concerning the situation and character of the property and the conditions under which the insurance would be issued. If Packard & Piper saw fit to deliver the policy without an application, trusting to Carleton to procure one subsequently, they would certainly be bound by whatever Carleton might do, and his statements would undoubtedly be admissible as against the company, whose agents Packard & Piper concededly were. With reference to this application, Carleton -was not a soliciting agent, but was the actual representative of the agents of the company, by whose acts the company would certainly be bound. It was not .error to admit his statements. If it were otherwise, the error was harmless, because the jury found the policy was issued without any application at all.
The proof and the verdict determine the equitable title to have been in Wich from the date of the purchase to the execution of the deed by the other three parties. The verdict was rendered under instructions which accurately limited and must have controlled the judgment of the jury. There was no room for prejudice or mistake. The opinions in the
The case does not present this question in such form as to require a very exhaustive discussion or analysis. While Carleton may possibly have been simply a solicitor in his relations to Perkins, Hart & Co., he occupied no such position with reference to this particular policy which was issued by Packard & Piper. The insurance had been appLied for and the first named firm was engaged in placing it when they applied to the representatives of the plaintiff company to pro
We do not regard the affidavits which were rejected as before us. They were not examined because they are not in the abstract. Parties who desire to urge error on the refusal to admit documents must put them in the abstract for the convenience of the court, or it will be assumed the errors are not well laid, and that there is not sufficient basis to urge them in this court. References to the transcript of record
The significance and importance of this adjudication is quite apparent from the circumstances under which the affidavits were obtained from Runkle, Wich and the other witnesses. The parties were not dealing at arms’ length. The agent was seeking to procure testimony to defeat the contract into which his company had entered. From the constant litigation into which their companies are engaged to defeat their contracts, these astute dealers in fire insurance policies are very well advised of what is essential for the purposes of defense and their sole efforts are directed, not to the ascertainment of the exact facts surrounding the transaction, but to the procurement of incriminating admissions and statements of facts which can be ultimately used to the prejudice of the policy holder. For the purpose of establishing what the truth may be, such affidavits are of little value, and the witnesses should be accorded the largest and fullest privilege to state the circumstances under which they were procured and to explain any statements which are contained in them. We are unable to discover any error in refusing the cross-examination asked, and in permitting the explanations to be made, and in ultimately refusing permission to introduce them.
During the progress of the examination of the witness
We are unable to appreciate the force of the contention that the special findings of the jury respected matters not properly involved in the issue and unsupported by the evidence. Just how the appellant can rightfully assert this position and complain of the results is not apparent. The questions were propounded by the Insurance Company. At the appellant’s request, they were asked to determine these specific matters of fact. Under these circumstances it does not lie with the appellant to say they were harmed by the procedure and that the verdict should be set aside because the jury evidently determined facts unwarranted by the evidence. If the matter was not involved, the question should not have been propounded. Being propounded at the appellant’s request, the company cannot be heard to say the case did not justify this consideration by the jury, and, in so far as the conclusions, if taken as true, are hurtful to the appellant, the result was achieved through their own procedure. It is entirely analogous to a request for instructions, which
We have thus disposed of all the matters which seem to require specific attention, and, the main propositions being determined against the appellant, there is nothing urged as error which would justify a reversal of the judgment. The case was fairly tried, the jury were very carefully and accurately instructed regarding the law, their findings as well as their general verdict were against the appellant, and, being accepted as conclusive on all questions of fact, the ultimate judgment was correctly rendered thereon.
We shall therefore affirm the judgment.
Affirmed.