Equitable Life & Cas. Ins. Co. v. Brennaman, 12947.

• Decision Date: 11 December 1933
• Docket Number: 12947.
• Citation: 27 P.2d 755,94 Colo. 31
• Parties: EQUITABLE LIFE & CASUALTY INS. CO. v. BRENNAMAN.
• Court: Colorado Supreme Court

27 P.2d 755

94 Colo. 31

EQUITABLE LIFE & CASUALTY INS. CO. v. BRENNAMAN.

No. 12947.

Supreme Court of Colorado, En Banc.

December 11, 1933

Error to District Court, Costilla County; John I. Palmer, Judge.

Action by Seward Brennaman against the Equitable Life & Casualty Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

S. S Packard, of Pueblo, for plaintiff in error.

Pilcher & Moyers, of Alamosa, for defendant in error.

HOLLAND Justice.

Defendant in error was plaintiff in the trial court where he filed his complaint, as beneficiary, for recovery on a policy of accident insurance issued to his son, Theodore Brennaman, on the 14th day of February, 1929, by the defendant, who is plaintiff in error here. On a judgment for plaintiff for $2,000, the face of the policy, the defendant assigns error.

Plaintiff's amended complaint contained the following pertinent paragraph: 'That said Theodore Brennaman died on the 29th day of May, 1929, from bodily injuries sustained through accidental means by reason of having been shot through the head by a bullet from a firearm in the hands of party whose name plaintiff does not know.'

The defendant denied this allegation and further answered that 'Theodore Brennaman came to his death aforesaid by suicide, within less than one year after the issuance of said policy of insurance, and that such death within said time is expressly excepted from the liability of defendant under said policy.'

The replication was not verified, but denied this allegation of the answer. The issue was thereupon made and resolved itself into the cause of death and as to whether or not it was within the provisions of the accident policy. A copy of the policy was made a part of the complaint. On stipulation, the case was tried to the court without a jury.

The errors assigned by plaintiff in error are to the general effect that the court erred in rejecting certain evidence offered, and that the judgment of the court in favor of the plaintiff was not supported by the evidence.

At the close of the trial, the following significant colloquy occurred between the court and counsel for the defendant.

'The Court: I can't help from saying an occurrence such as this appears to have been, appears to be susceptible of a whole lot more evidence than has been submitted in this case.

'Mr Packard: I think so too, but the people in Fort Garland are afraid to talk and...