Denver Life Ins. Co. v. Price

• Decision Date: 09 June 1902
• Parties: DENVER LIFE INS. CO. v. PRICE.
• Court: Colorado Court of Appeals

69 P. 313

18 Colo.App. 30

DENVER LIFE INS. CO. v. PRICE.

Court of Appeals of Colorado

June 9, 1902

Appeal from district court, Arapahoe county.

Action on a life policy by Lily L. Price against the Denver Life Insurance Company From a judgment for plaintiff, defendant appeals. Affirmed.

Westbrook S. Decker, H.A. Lindsley, and Charles F. Fury, for appellant.

W.D Reid and Tyson S. Dines, for appellee.

WILSON P.J.

This suit was upon a policy of life insurance. The defense was based upon a provision in the policy that if the insured should use alcoholic, narcotic, or other stimulants so as to impair health, or cause death thereby, then the policy should be null and void. It was alleged in the answer that the insured "deliberately and on his own motion, and in disregard of its effects upon his life, took a large and over dose of phenacetin,--the same being a narcotic,--and that the taking of which phenacetin was the sole cause of the death." In the replication the allegation that the insured died from an overdose of phenacetin was denied, and it was averred that death was from some natural cause, unknown to the plaintiff. By the pleadings two issues were presented: (1) Whether phenacetin was a narcotic, (2) Whether death was caused by an overdose of it. These were questions of fact, and the burden to prove each was upon the defendant company. The finding of the court was adverse to the defendant, and not being manifestly against the weight of the evidence, and it being ample to support the finding, this court is, under the well-settled rule, bound by it.

The chief contention of defendant, however, upon which it relies for a reversal of the judgment, grows out of the proofs of death. It appears that in what is called the "Certificate of the Attending Physician," appended to and made a part of the proof of death, made out upon a printed form furnished by the company, the physician, in answer to the printed question, "State the remote cause of death and all predisposing features," stated "Paralysis of the heart, due to an overdose of phenacetin." It was claimed that the beneficiary, wife of the deceased, adopted and was bound by this answer because in the statement made out by her, constituting a part of the proof of death, also made out upon a printed form furnished by the company, in answer to a question as to the cause of death, she replied, "See physician's statement." It was shown by the testimony of the physician himself, who made out the certificate, that he was not in attendance upon the deceased before or at the time of his death; that death was very sudden, and he (the physician) did not see the insured until after he was dead; and that, in making out the statement as to the cause of death, he relied upon hearsay; he having been told by a clerk of the deceased that the insured had the evening before his death taken a dose of phenacetin. Even this, however, was denied by the clerk in his testimony. Notwithstanding these facts, defendant urges that the plaintiff was estopped from denying that death was from any other cause than that stated in this certificate of the attending physician, which she had adopted as her answer in her affidavit making proof of death and that it was reversible error in the court to permit evidence to be received contradicting this certificate. The position of defendant is contrary to the overwhelming weight of authority. Even if the physician in this case had been the attending physician of the insured, it has been held by very high authority that the beneficiary should not be held responsible for any misstatement contained therein not caused by...