De Ford v. New York Life Ins. Co.

• Decision Date: 03 March 1924
• Docket Number: 10609.,10597
• Citation: 224 P. 1049,75 Colo. 146
• Parties: DE FORD v. NEW YORK LIFE INS. CO. (two cases).
• Court: Colorado Supreme Court

224 P. 1049

75 Colo. 146

DE FORD v. NEW YORK LIFE INS. CO. (two cases).

Nos. 10597, 10609.

Supreme Court of Colorado

March 3, 1924

Rehearing Denied April 7, 1924.

Department 2.

Error to District Court, Weld County; Neil F. Graham, Judge.

Two actions, one by Agnes De Ford, individually, and the other by C. H. De Ford, as administrator of the estate of L. D. Hale De Ford, against the New York Life Insurance Company. Judgment for defendant, and each plaintiff brings error.

Judgment against first-named plaintiff affirmed, and as to second-named plaintiff reversed.

William R. Kelly and Worth Allen, both of Greeley for plaintiff in error.

William A. Jackson, of Denver (Louis H. Cooke, of New York City, of counsel), for defendant in error.

TELLER C.J.

Plaintiff in error was plaintiff below, suing as the administrator of the estate of his deceased son for damages, alleged to have resulted from delay on the part of the defendant in error in the issuing and mailing of a policy on the son's life.

A suit by the mother, the beneficiary in the policy, was brought at the same time for the sum named in the policy. Demurrers to the complaints in both actions were sustained and the cases are now here for review. This action being in tort for negligence on the part of the defendant, and not upon the policy, the basis of the action is that of failing to discharge a duty owing to the deceased. Such being the case, the right of action vested in the legal representative of deceased. Duffie v. Banker's Life Ass'n, 160 Iowa 19, 139 N.W. 1087, 46 L.R.A. (N. S.) 25. It follows that the demurrer to the complaint by the mother was properly sustained, and the judgment in that case will be affirmed.

The complaint in this cause alleges that an application was made by the insured, on the 11th of December, 1918, for a policy in the sum of $1,000, such application being accompanied by the applicant's promissory note for the amount of the semiannual premium, which was accepted as payment, and cash payment waived; that the application was approved at the home office of defendant on December 21, 1918, and a policy in the sum named was then executed and issued by the defendant; that defendant failed to use due diligence in acting upon said application, and negligently failed to mail the policy until December 30th or 31st, at which time it was mailed to the Denver office of the defendant; that the applicant became sick on the 23d of December, and died on the 26th of that month.

It is alleged further that under the policy the company was being paid for insurance from the time of the application, though it did not become effective until the policy had been 'delivered to and received by the applicant during his lifetme and in good health,' because of which conditions the company owed a duty to the applicant to use reasonable care and diligence in passing upon the application, and in the execution and delivery of the policy.

Damage is claimed in the sum named in the policy. Counsel on both sides have discussed at some length the question whether or not an insurance company is...