Equitable Life Assur. Soc. of U.S. v. Hemenover

Decision Date29 March 1937
Docket Number13772.
PartiesEQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. HEMENOVER et al.
CourtColorado Supreme Court

Rehearing Denied April 19, 1937.

In Department.

Error to District Court, Larimer County; Frederic W. Clark, Judge.

Suit by Edgar E. Hemenover and another against the Equitable Life Assurance Society of the United States. To review a judgment for plaintiffs, defendant brings error.

Affirmed.

Percy A. Robinson and Carl C. Hearnsberger, both of Denver, and Fred W. Stover, of Fort Collins, for plaintiff in error.

Mortimer Stone and Alden T. Hill, both of Fort Collins, for defendants in error.

BURKE Chief Justice.

These parties are hereinafter referred to as follows: Plaintiff in error as the company, Edgar E. Hemenover as Edgar, Roy E Cook as Cook, Harriett F. Hemenover as Harriett, and one Ruby A. Howell, deceased, as Mrs. Howell. At the time of the trial of this cause Edgar was twenty-five years of age and Harriett seventeen. They were the only children of Mrs. Howell. Cook and Edgar were guardians of the estate of Harriett.

Mrs Howell carried a $5,000 life policy in the company. Her children were the beneficiaries. A double indemnity clause increased this sum to $10,000 in case of accidental death. Payments were to be made in monthly installments of $50 to each beneficiary. Mrs. Howell died December 31, 1932. The company admitted liability for $5,000 only and had made specified monthly payments up to August 22, 1934, when the complaint herein was filed. Defendants in error brought this suit for a declaratory judgment establishing the applicability of the double indemnity clause on the ground of death by accident. The company defended on the theory of no accident. The cause was tried to the court and an advisory jury and judgment entered for defendants in error. To review that judgment the company prosecutes this writ.

There are twenty assignments of error. Several of these are such as we have repeatedly held no assignments, and others are not argued. Such are not further noticed. The remainder may be grouped as follows: 1. This was not a proper case for a declaratory judgment. 2. This was not a jury case, but, if it were, erroneous instructions were given and correct instructions refused. 3. The judgment is unsupported by the evidence. In addition to the foregoing, there are assignments based upon the overruling of demurrers, motions for nonsuit directed verdict, and judgment notwithstanding the verdict. We think what we hereinafter say under '3' renders special discussion of these unnecessary.

The death of Mrs. Howell was admittedly due to an overdose of luminal, taken for 'nerves,' or sleeplessness, and admittedly accidental. Nine instructions were given the jury and ten refused. Error is assigned as to each. The only matter submitted was the single interrogatory, 'Do you find luminal to be a poison, as defined in the instructions herein, and under the testimony as given in this cause?' The answer was, 'No.' This answer 'the court does hereby approve and adopt.'

1. Our Declaratory Judgments Act is chapter 98, p. 268, Laws 1923. Portions thereof relating to this controversy read: 'Any person interested under a * * * written contract * * * may have determined any question of construction * * * arising under the * * * contract * * * and obtain a declaration of rights * * * thereunder.' Here we have a contract, persons interested, and a question of construction. The complaint does not specifically allege that 'a controversy has arisen concerning the construction of the policy,' but the existence of such a controversy clearly appears from the complaint and is admitted by both demurrer and answer. Counsel for the company cite and rely upon Gabriel v. Board of Regents, 83 Colo. 582, 267 P. 407. We do not consider it in point. From that complaint it affirmatively appeared that no controversy had in fact arisen. We think a further examination of authorities cited would be profitless. This appears to us clearly a case contemplated by the statute.

2. If this was not a jury case the company has no cause of complaint. The court treated the jury as merely advisory. Findings and judgment depend in no measure upon the verdict. Hence whether the instructions were correct or incorrect is immaterial.

3. The policy provided for the increase to $10,000 'in the event of the insured's death from accident, as defined in the double indemnity provision on the third page hereof.' Said provision contains the following: 'Death from accident means death resulting solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, * * * but does not include death resulting from or caused directly or indirectly by the taking of any poison.' It is contended (a) that, though accidental, death was not from accidental means; (b) that death resulted from taking poison.

a. The fine distinction between 'accidental death' and 'death from accidental means' would certainly never occur to an ordinary policy holder. Stated in another way, this distinction is between accidental means and accidental result. The company relies primarily upon Landress v. Phoenix M. L. Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 463, 78 L.Ed. 934, 90 A.L.R. 1382. That was a sunstroke case in which the court held the means natural though the result was accidental, hence 'accidental death' not covered by the policy. Other similar cases cited are Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56, a case of death from a hernia operation; Order of United Commercial Trav. of A. v. Shane (C.C.A.) 64 F.(2d) 55; and Mehaffey v. Provident Life & Acc. Ins. Co., 205 N.C. 701, 172 S.E. 331, a case of taking some poisonous substance intentionally, but without knowledge of its nature.

In the Landress Case, supra, Mr. Justice Cardozo, in an able dissenting opinion says: 'The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.' Whatever kind of bog that is, we concur. We concur also in his statement that 'The principle that should govern the interpretation of the policy in suit was stated with clarity and precision by Sanborn, J.,' in Western Commercial Travelers' Ass'n v. Smith (C.C.A.) 85 F. 401, 405, 40 L.R.A. 653. Other authorities to the same effect are: 1 C.J. § 73, p. 427; 7 A.L.R. p. 1141, note IV; 17 A.L.R., annotation, p. 1197; Provident Life & Acc. Ins. Co. v. Green, 172 Okl. 591, 46 P.2d 372; Brown v. Continental Cas. Co., 161 La. 229, 108 So. 464, 45 A.L.R. 1521; Taylor v. New York Life Ins. Co., 176 Minn. 171, 222 N.W. 912, 60 A.L.R. 959. While perhaps not strictly in point yet in reason supporting the foregoing are: Lampkin v. Travelers' Ins. Co., 11 Colo.App. 249, 52 P. 1040; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013, 9 Ann.Cas. 916; Bickes v. Travelers' Ins. Co., 87 Colo. 297, 287 P. 859. Respectable authority thus appears on both sides of this question. We align this court with the views of Judge Sanborn and Justice Cardozo. Any other conclusion seems to us a departure from our own decisions and a violation of the well-settled rules that such language in such contracts is to be given its ordinary and popular meaning, and that 'ambiguities and uncertainties are to be resolved...

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    ...the court affirmed the jury verdict that the insured died through accidental means.6 See Equitable Life Assur. Soc'y of United States v. Hemenover, 100 Col. 231, 67 P.2d 80, 110 A.L.R. 1270 (1937) (overdose of luminal); Gulf Life Ins. Co. v. Nash, 97 So.2d 4, 8 (Fla.1957) (pointing gun at s......
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