Boaz v. Order of Commercial Travelers of America

• Decision Date: 08 October 1917
• Docket Number: 8731.
• Citation: 168 P. 1178,69 Colo. 44
• Parties: BOAZ v. ORDER OF COMMERCIAL TRAVELERS OF AMERICA.
• Court: Colorado Supreme Court

168 P. 1178

69 Colo. 44

BOAZ v. ORDER OF COMMERCIAL TRAVELERS OF AMERICA.

No. 8731.

Supreme Court of Colorado, En Banc.

October 8, 1917

Rehearing Denied Dec. 4, 1917.

Error to Court of Appeals.

Action by Margaret Heiskell Boaz against the Order of Commercial Travelers of America. A judgment for plaintiff was reversed by the Court of Appeals, and she brings error. Judgment of the Court of Appeals reversed, and cause remanded, and judgment of the district court affirmed.

White C.J., dissenting.

Charles A. Murray, of Denver, for plaintiff in error.

Archibald A. Lee, of Denver, for defendant in error.

TELLER J.

The husband of plaintiff in error, at the time of his death on March 26, 1913, was a member of the defendant in error, a fraternal benefit society, under a certificate in the nature of an insurance policy, in which plaintiff in error was named as the beneficiary. The by-laws of the order required notice of death to be given within 10 days, but in this case the notice, mailed April 3, 1913, having been addressed to Chicago, instead of Columbus, Ohio, did not reach the office of the order until 19 days after the death of Boaz. The parties will be hereinafter designated as they stood in the trial court.

The defendant, on April 15, 1913, on request of the plaintiff sent her blanks for making proof of death, and there was on said blanks the following indorsement:

'In sending this blank this order does not waive any provision of the constitution, but expressly reserves the same.'

It appears that said indorsement is in accordance with an express provision of the constitution that sending blanks or investigating a claim shall not constitute a waiver of any defense to such claim. On April 25, 1913, proof of death was forwarded to the defendant and received and retained. In the letter transmitting said proof, plaintiff requested that other blanks be forwarded, if necessary. On May 12th plaintiff, through her attorneys, wrote defendant, stating that no reply had been received to the letter sent with proof of death, and asking that plaintiff be advised of defendant's conclusions in the matter. On July 7th defendant sent plaintiff another blank, and informed her that she might answer the questions propounded in the blank. Both letter and blank contained a statement that no rights were waived. On July 14th plaintiff sent defendant the additional proof made in accordance with the second blank sent her, and requested that a copy of the application on which the certificate was issued be sent to her. The copy was sent, with a letter saying that it was sent 'as an accommodation only.' July 25th plaintiff's attorneys wrote defendant, calling attention to the fact that no indication had been given of an intention to settle the claim, in consequence of which they had been directed to take the steps necessary to collect it. Three days later defendant wrote them that plaintiff had no right of action until the claim had been disallowed, and that undoubtedly it would be rejected.

Thereupon an action was begun on the certificate. Defendant in its answer alleged that the deceased had been intoxicated at and for some time prior to the date of his death, and, further that he committed suicide, in either of which cases there was no liability. It also alleged that notice of death was not given within the time required by the constitution of the order. The replication denied the intoxication and suicide, and set out the sending of blanks, etc., as above recited, all without notice of objection on account of want of notice within the time, and alleged that the condition as to notice had been waived. The plaintiff had judgment, and the case was brought up on error, and sent to the Court of Appeals. The judgment was there reversed; two of the judges dissenting, and one concurring specially. In his concurring opinion he stated that he recognized that this case comes under the rule laid down in Insurance Co. v. Allis Co., 11 Colo.App. 264, 53 P. 242, supporting the defense of waiver, but that his judgment did not approve that ruling.

It appears, therefore, that the reversal of the judgment according to the views of a majority of the judges was contrary to the law as heretofore laid down by that court, yet the case mentioned was not overruled; indeed, there is no reference to it in the majority opinion. If the defense of waiver is good, the reversal of the judgment was error. The other defenses were determined by the verdict.

There is in the briefs an extended discussion of waiver by pleading other defenses than that of want of notice, together with the latter defense. We do not consider it necessary to determine that question in this case.

If there was a waiver in fact, it was by the conduct of the defendant before the suit was begun. We are to determine whether or not the acts relied upon as constituting a waiver do, in...