40 Colo. 344 | Colo. | 1907
delivered the opinion of the court:
Action upon insurance policy by appellees, as plaintiffs below, against appellant. The complaint alleges in substance that defendant in September, 1901, for a valuable consideration, made, and executed and at about the same time, by W. D. Kelsey its agent in Phillips county, delivered its policy of insurance, in writing, insuring plaintiffs in the sum
The answer of defendant admits that it is now and at all times mentioned in the complaint was a corporation duly organized under the laws of Colorado, and denies each and every other allegation of the complaint.
Trial to a jury. There was a verdict and judgment for plaintiffs in the sum of. two thousand one hundred and twenty-one dollars and seventy-six cents ($2,121.76), and defendant comes to this court on appeal.
There are fifty assignments of error. We do not deem it necessary to pass specifically upon each one. The general statement of the law governing in this case will sufficiently dispose of all of them.
The first and one of the principal questions raised is: Was there a delivery of the policy*? Whether there has been a delivery at all is a question for the jury under proper instructions. — Smith v. Life Assur. Soc. of N. Y., 65 Fed. 765; Snyder v. Ins. Co., 202 Pa. 161.
The evidence upon the question of delivery was conflicting. The secretary of the defendant company testified that the policy was made out and registered in his office but that he instructed the clerk not to deliver it. lie further says: “It might be possible that we would send a policy and say de
The plaintiffs both swore positively that the National Mutual policy was delivered to them by Mr. Kelsey. The elder Sprague was not sure whether he signed the obligation slip or not, it was his recollection he did. It was further testified by them that the policy read in consideration of thirty-six'dollars ($36.00), this being the amount of the assessable note or premium claimed by defendant not to have been paid. It was further shown that there was a loss by fire and that the amount of loss was unpaid. It was alleged and proven that the policy was destroyed by fire. A blank form of policy was introduced in evidence containing the same conditions as the destroyed policy. Applying the evidence to supply the blank spaces in the policy, a portion of it was made to read as follows: “The National Mutual Fire Insurance Company of Denver, Colorado, in consideration of the stipulations herein named and thirty-six dollars ($36.00) premium does insure,, etc.”
This case was thus brought squarely under the rule laid down in Ins. Co. v. Friedenthal, 1 Colo. App. 5, 9, holding that such language imports the payment prior to the delivery as the consideration for the delivery of the contract to the insured. The proof had the effect of leaving the plaintiffs in the same position as though the policy had been in their possession after the fire, and such possession is presumption that the policy was duly delivered by the insurance company. — Benefit Life Assn. v. Sibley, 158 Ill. 411; Thum v. Wolstenholme, 21 Utah 446; 61 Pac. 537; Jones v. Ins. Co., 168 Mass. 245.
Another question upon which appellant strongly relies is that a certain assessable note, so-called, was not given by the insurer, and that no liability attached to the company because it was provided by the terms of the contract that such liability should not attach until the note was given; and in this connection it alleges its objection to certain evidence introduced on the part of the plaintiffs below and to the instructions of the court concerning what it calls a waiver of such note without any plea of waiver in the complaint; and further alleges that there could be no waiver by an agent or officer of the company, .and only by the company itself.
Referring to the pleadings, the defendant would not have been permitted, upon proper objections, to introduce any evidence concerning the nonpayment of the premium or the failure to give the assessable note — so-called. It was stated in Ins. Co. v. Friedenthal, supra, that “when the policy was delivered it
It is' unnecessary to the determination of the questions presented to discuss at length the many decisions which have been rendered upon the force and effect of the recitals in this policy. Following the rule of our own court in the case of Ins. Co. v. Friedenthal, it is sufficient to say that the recitals of the policy and its possession are at least prima facie evidence that the premium was paid or that the assessable note was given. Had the defendant chosen to allege that the policy was obtained improperly or fraudulently, or that the premium had not been paid, then it would have been obligatory upon the plaintiffs to specially plead the waiver, if they were intending to rely upon such waiver, and for the reason that the waiver must be pleaded as new matter by way of confession and avoidance. — Eiseman v. Ins. Co., 36 N. W. 780; Bernhard v. Ins. Co., 40 Iowa 442. But the defendant did not plead the failure to pay the' premium and the plaintiffs were not bound to specially plead the waiver.
To controvert this statement and in rebuttal, the plaintiffs showed that like policies were delivered through the agent Kelsey, and without the obligation slips signed by insured, and that he had delivered other policies in The National Mutual Company to residents of Phillips county in the vicinity of Holyoke. For the first time objection was made to the introduction of any evidence concerning the waiver of the premium because the same was not pleaded in the complaint. These objections were properly overruled for the reason that the defendant had done much in the introduction of this evidence to tender these issues regardless of the pleadings, and, as it was received prior to the rebuttal, without objections, by both parties, the failure to allege nonpayment or a waiver must be deemed to have been waived, by both.
We do not think the defendant is in position to object to either the introduction of the evidence or the instructions. The first failure to plead properly, occurs in defendant’s answer. By its denial it precluded itself from making any defense under the circumstances of this case excepting upon the question of the delivery of the policy. The evidence was admissible to contradict the statements of the de
Holding that under the. circumstances of this case the instructions were properly given, we find that they were much more favorable to the defendant than to the plaintiffs, and the burden was, by such instructions, placed upon plaintiffs to prove not only all the allegations of the complaint, but any waiver relied upon, to the satisfaction of the jury. We are further of the opinion that if a waiver was relied upon, whether pleaded or not, there was sufficient evidence to sustain it and to show that Kelsey was such an agent that a waiver _ by him would bind the company. He manifestly had the right to deliver policies, to solicit applications, to collect the premiums thereon, and it appears by the evidence that he represented the company in every respect so fa.r as the plaintiffs were concerned, and that they did' all their business with him. At least he was such an agent as could waive conditions precedent and thereby bind the company regardless of the recitals in the policy. — Ins. Co. v. Schlink, 175 Ill. 284, 51 N. E. 795; Hewitt v. Ins. Co., 70 N. Y. Supp. 1012; Miller v. Ins. Co., 17 Fed. Cas. 312. There can no
We are not holding that there was a waiver in this ease, or that it was necessary for the plaintiffs to prove waiver to support the verdict. There was some testimony to the effect that the assessable note had been signed and the defendant testified positively that the plaintiffs could not have had the policy in their possession without executing an assessable note. There was also testimony in rebuttal to the effect that the agent Kelsey had said he had fixed all papers of plaintiffs himself and that their insurance was all right. There was sufficient evidence in this respect upon which the jury might have rested their verdict, regardless of any waiver.
Appellant further says the contract of insurance was not complied with on account of the failure of the plaintiffs to furnish proof of loss. It is clear that the plaintiffs attempted to furnish such p^oof through the agent Kelsey, but having no blanks he wrote to the company for same for the purpose of furnishing the proof in the form required. But the company refused to pay the insurance upon the ground that there was no delivery of the policy and no- payment of the premium or execution of'the assessable note, and this was a waiver of the rights to demand proofs of loss. — Ins. Co. v. Smith, 3 Colo. 422; Ins. Co. v. Manning, 3 Colo. 224; Lambkin v.
Perceiving no errors in the record which can he considered prejudicial to appellant, the judgment is affirmed. . Affirmed.
Chief Justice Steele and Mr. Justice Maxwell concur. _