Capitol Life Ins. Co. v. Di Iullo

• Decision Date: 23 December 1935
• Docket Number: 13778.
• Citation: 98 Colo. 116,53 P.2d 1183
• Parties: CAPITOL LIFE INS. CO. v. DI IULLO.
• Court: Colorado Supreme Court

53 P.2d 1183

98 Colo. 116

CAPITOL LIFE INS. CO. v. DI IULLO.

No. 13778.

Supreme Court of Colorado, En Banc.

December 23, 1935

Rehearing Denied Jan. 27, 1936.

Error to District Court, City and County of Denver; Samuel W Johnson, Judge.

Action by Elvira Di Iullo against the Capitol Life Insurance Company. Judgment for the plaintiff, and the defendant brings error.

Reversed and remanded, with instructions to dismiss.

BURKE HILLIARD, and YOUNG, JJ., dissenting.

Wm. E. Hutton and Bruce B. McCay, both of Denver for plaintiff in error.

Gilbert L. McDonough and Frank McDonough, Jr., both of Denver (Willis L. Strachan and Jno. T. Haney, both of Colorado Springs, of counsel), for defendant in error.

BUTLER Chief Justice.

On November 21, 1925, the Capitol Life Insurance Company issued a policy on the life of Carlo Di Iullo for $5,000. Attached to the policy and made a part thereof was a double indemnity provision, whereby, so far as pertinent here, the company agreed to pay an additional $5,000 'in event that the death of the insured hereunder results directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occur within sixty days after sustaining such injury.' It provided that the double indemnity benefit 'will not apply if the insured's death resulted from self-destruction, whether sane or insane.' The double indemnity was granted in consideration of 'the additional premium of $7.50 annually, which is included in the premium stated on the face of this policy.' The company paid to the beneficiary, Elvira Di Iullo, $5,000 under the straight life insurance policy, but refused to pay the additional $5,000 under the double indemnity provision, whereupon the beneficiary sued for that amount. She alleged in her complaint that the death of the insured was the result of an accident. The allegation the company denied. The plaintiff's evidence showed conclusively that on September 26, 1933, the insured committed suicide while sane. Thereupon, and for that reason, the court directed a verdict for the plaintiff, and upon that verdict rendered judgment for the plaintiff. To reverse that judgment, the company sued out this writ of error.

The trial court held, and the defendant in error contends here that notwithstanding the admitted fact that the insured was sane when he committed suicide, the company is liable by virtue of section 2532 of [53 P.2d 1184] Compiled Laws of 1921. That section is as follows: 'From and after the passage of this act, the suicide of a policy-holder after the first policy year, of any life insurance company doing business in this state, shall not be a defense against the payment of a life insurance policy, whether said suicide was voluntary or involuntary, and whether said policy holder was sane or insane.'

Counsel for the plaintiff in error refer us to the elaborate briefs on this question filed in Occidental Life Ins. Co. v. United States National Bank (Colo.) 53 P.2d 1180. We have considered the briefs filed in both cases.

We have not heretofore passed directly upon the question now presented to us.

In the case of a straight life insurance policy providing for the payment of money upon the death of the insured, the condition upon which liability depends is the death of the insured, and, his death being shown, the loss comes within the coverage of the policy, and any provision attempting to relieve the insurer from liability in case the insured, after the first policy year, commits suicide, whether sane or insane at the time, is rendered void by the statutory provision quoted above. In this case the insurer recognized its liability on the straight life insurance policy and paid to the beneficiary the full amount of $5,000. Where, however, a policy provides for the payment of money upon the death of the insured as a result of accident, there are two conditions upon which liability depends; namely, (1) death of the insured, and, (2) accidental cause of such death. Where an insured commits suicide while insane, those two conditions are present, for suicide while insane is an accident. Officer v. London Guarantee & Accident Co., 74 Colo. 217, 220 P. 499; London Guarantee & Accident Co. v. Officer, 78 Colo. 441, 242 P. 989; Massachusetts Protective Association v. Daugherty, 87 Colo. 469, 288 P. 888. In such case the statute applies, and it is no defense that the insured committed suicide. See cases cited above. But under the double indemnity provision, no liability arises unless death results from accident. Suicide by the insured while sane is not an accident. Officer v. London Guarantee & Accident Co., supra, 74 Colo. 217, at page 220, 220 P. 499; Note 16 A.L.R. 1402; Brunswick v. Standard Accident Insurance Co., 278 Mo. 154, 213 S.W. 45, 49, 7 A.L.R. 1213; Von Crome v. Travelers' Insurance Co. (C.C.A.) 11 F. (2d) 350, 354; Business Men's Assurance Co. of America v. Scott (C.C.A.) 17 F. (2d) 4. In such case the statutory provision quoted above does not apply. There is no liability on the part of the insurer, not because the insured committed suicide, but because there was no accident, and, as we have seen, the double indemnity clause provides for payment only in case of death by accident. It does not cover nonaccidental death. It may just as reasonably be held that on a straight life insurance policy, providing for the payment of money on the death of the insured, the insurer is liable where there has been no death, as to hold that on a policy providing that money shall be paid in case of death by accident, the insurer is liable where there has been no accident.

For the foregoing reasons, which seem to us to be unanswerable, we would content ourselves with reversing the judgment without further discussion, were it not for the fact that certain decisions, some of them relied upon by counsel for the defendant in error, seem to require some notice.

So far as we are advised, there are decisions in only two other states having a statutory provision substantially the same as ours; namely, Missouri and Utah.

In Whitfield v. Aetna Life Insurance Co., 205 U.S. 489, 27 S.Ct. 578, 51 L.Ed. 895, the court following what it believed to be the construction given to the Missouri statute in Logan v. Fidelity & Casualty Co., 146 Mo. 114, 47 S.W. 948, held that the statute allowed a recovery on an accident policy in case the insured committed suicide while sane. Thereafter the Supreme Court of Missouri, in Brunswick v. Standard Accident Insurance Co., supra, held that the statute has no application in an action on an accident policy, in case of suicide by a sane person, and that the Logan Case did not hold to the contrary. There is an able discussion in the opinion, in the course of which the court said:

'While the above section makes absolutely void all stipulations exempting liability on account of suicide and all defenses bottomed on the fact of suicide, yet it nowhere relieves the plaintiff, in an action upon a policy of accident insurance, from making proof that the death of the assured was caused by an accident. In short, as forecast above, the section does not write into an accident policy a cause of action where none existed upon the facts. Granting, for the sake of argument, that the section * * * could have gone further, and provided that 'suicide by a sane person shall be deemed to be an accident,' it is enough to say that it does not so provide. If the Legislature desired to create a cause of action upon a policy of accident insurance where none existed within the obvious meaning of the plain language of such contracts, it would have been easy to say so. Therefore, unless the courts are able to say that a death by suicide of a sane person is a death by accident, further legislation would seem to be called for. There are no cases up to the present time so holding. Both the reason of the thing and the cases are the other way. * * *

'If under this rule it be impossible to distinguish the Whitfield Case * * * then we may content ourselves with saying that it is not binding on us in any respect, but, at most, only persuasive as the utterance of a great court, unfamiliar, however, with many of the intricacies of our local statutes and rulings thereon.'

To the same effect, see Scales v. National Life & Accident Insurance Co. (Mo.Sup.) 212 S.W. 8, 10; Andrus v. Business Men's Accident Association of America, 283 Mo. 442, 223 S.W. 70, 13 A.L.R. 779; Aufrichtig v. Columbia National Life Insurance Co., 298 Mo. 1, 249 S.W. 912.

In the Scales Case, supra, the court said among other things: 'In Logan v. Fidelity & Casualty Co., 146 Mo. 114, 47 S.W. 948, it was agreed by the parties that the insured came to his death from 'external, violent, and accidental means.' It was also conceded that he committed suicide. In other words, it was conceded that it was a death by accident. The court there correctly held that an accidental death by suicide was covered by the accident policy, and that the statute applied and took away the defense of suicide. It did not hold or intimate that a suicide by a sane person was an accident or was covered by an accident policy. It did not touch the question now under consideration, because such a question could not arise under the agreed facts of that case.'

And referring to the Whitfield Case, supra, and other cases, the court said: 'The vital point now under consideration was not discussed or decided. The plain truth is that courts and counsel in all those cases proceeded on the theory that under the Logan Case, suicide by a sane person was an accident covered by an accident policy, an assumption absolutely without any foundation, as we...