Germania Life Ins. Co. v. Ross-Lewin

• Decision Date: 20 December 1897
• Citation: 51 P. 488,24 Colo. 43
• Parties: GERMANIA LIFE INS. CO. v. ROSS-LEWIN et al.
• Court: Colorado Supreme Court

51 P. 488

24 Colo. 43

GERMANIA LIFE INS. CO. v. ROSS-LEWIN et al.

Supreme Court of Colorado

December 20, 1897

Appeal from district court, Arapahoe county.

Action by George E. Ross-Lewin, as trustee, and the First National Bank of Denver, against the Germania Life Insurance Company of New York, on a policy of life insurance. From a judgment for plaintiffs, defendant appeals. Reversed.

This action was instituted by George E. Ross-Lewin, as trustee and the First National Bank of Denver, plaintiffs, against the Germania Life Insurance Company of the City of New York defendant, to recover upon a policy of insurance upon the life of Jacob Boehm for the sum of $30,000. This life insurance policy was procured by Boehm on the 23d day of October, 1891, the consideration being the payment of the sum of $1,644, and an agreement for a like payment annually thereafter for the period of 20 years, or during the life of the assured. On the 11th day of November, 1891, Boehm, for a valuable consideration, assigned and transferred this policy of insurance to plaintiffs, of which assignment written notice was given to the defendant. Boehm died on the 14th day of March, 1892, at Denver, Colo., and in due time the defendant was furnished by plaintiffs with proof of the death of the assured, and payment was demanded upon the policy which was refused. All these allegations of the complaint were admitted by the answer. To defeat the action, the defendant relied upon three affirmative defenses, two of which were abandoned at the trial, so that it is only necessary upon this review to consider the third defense. This third defense is based upon the fifth paragraph of the written application, which was made a part of the contract of insurance: 'Conditions and Agreements of This Insurance. This policy shall cease, and be null, void, and of no effect and this company shall not be liable for the payment of the sum assured, or any part thereof, but all premiums previously paid shall be the absolute property of the company, without any account whatever to be rendered therefor: * * * 5th. (Suicide.) If, within three years from the date hereof, the said assured shall die by suicide, or by his or her own band or in consequence of an attempt to commit suicide, or to take his or her own life, whether sane or insane at the time.' The company's defense of suicide was alleged in the following words: 'And the defendant further alleges that the death of said Jacob Boehm was caused by the presence of cyanide of potassium in the body of said Jacob Boehm; that cyanide of potassium is a deadly poison; that said poison was taken by the said Jacob Boehm from his own hand; and that said assured died on the day alleged by suicide, and by his own hand, and in consequence of an attempt to commit suicide, and of an attempt to take his own life.' On and prior to March 14, 1892, the deceased, Jacob Boehm, had been conducting an extensive business in the city of Denver with one Steinbok, under the firm name of Boehm & Co. Upon that date both he and the firm were financially embarrassed, and the property of the firm was seized under a writ of attachment levied in favor of the First National Bank of Denver. The evidence shows that this attachment was levied about the noon hour, Boehm at the time being absent from the store for his noonday lunch, having gone to the Arcade restaurant, on Larimer street, in this city, with two friends, for that purpose,--one, Adolph Schayer, who had been his intimate business and personal friend for many years; the other, an acquaintance by the name of Farmer. Soon after these parties seated themselves at the table, and after taking some soup, the deceased, getting up from the table, stated that he desired to inform his partner, Mr. Steinbok, by telephone, where he was. This he did at the telephone in the room. When he returned to his friends, it was noticed that he was pale, and much agitated, and expressed a desire to leave without eating, whereupon the others said they would go with him. On the way out of the restaurant they stopped at the cigar stand, and Boehm purchased cigars for himself and friends. About this time Boehm told Schayer that he wanted to get rid of Farmer, in order that he might speak to Schayer on business. Boehm and Schayer then separated from Farmer, and proceeded together along Larimer street, going towards Boehm's place of business. The evidence shows that Boehm, who was laboring under great excitement at this time, said to Schayer, 'Adolph, they have got me; the sheriff is in possession of the place now,' and then began muttering to himself, 'My God, I didn't think George would do it!' Upon being questioned as to whom he referred, he said, 'Why, the First National Bank attachment.' Soon after this he stopped on the sidewalk, and said: 'Adolph, I want you to promise me one thing. I want you to be as good a friend to my wife as you have been to me.' Schayer testified that this conversation had such an effect upon him that he became very much excited, and began to search Boehm for something,--passed his hand over his hip pockets, and went through his clothes,--but did not find anything, but resolved to stay with him. When they reached the store of Boehm & Co., Boehm went in. Schayer remained at the entrance for a few minutes, then went to the office of Dr. Badenoff, near by, and on his way back stepped into a store for a short time. All this took but a few minutes, when he returned to Boehm's place of business, and ascertained that Boehm had left during his absence. Schayer then proceeded up town, but soon returned and went to the Windsor Hotel, and looked at the register, where he saw Boehm's name registered, and room No. 519 marked opposite his name. He went immediately to this room, and found the door locked on the inside. He attempted to open the door, but, failing in this at first, put a boy through the transom, who opened the door by unlocking it from the inside. Upon entering the room, he found the dead body of Boehm lying upon the bed, flat upon his back. His shoes had been removed from his feet, his coat off, vest unbuttoned, necktie untied, and collar loosened. The witness testifies that he found about an ounce vial in the inside vest pocket of the deceased, and he also saw a tumbler in the room, in which there was a brownish liquid or sediment, the color corresponding with that of the liquid in the vial. It is shown that after Mr. Schayer left Mr. Boehm, at the store, Boehm was visited by his attorney, Mr. Earl B. Coe, by appointment. The two left the store shortly after 2 o'clock, Mr. Coe accompanying the deceased a short distance up the street, where they separated, Mr. Coe going first to his office, and then to the residence of Mr. Boehm. Returning to his office, he was called to the Windsor Hotel, where he found Mr. Boehm a corpse. Mr. Coe testifies that from the time he left Mr. Boehm, on Curtis street, until he saw his body at the hotel, not more than an hour had elapsed, and possibly the time was less than this. It is shown that Mr. Boehm went to the Windsor Hotel alone, registered, and asked for a room to lie down in. He had never had a room at this hotel before. It is further shown that, soon after Mr. Schayer entered the room at the hotel, Dr. Martin reached the place, and made an examination of the body. At this time the deceased's head was thrown back at an angle of 45 degrees; his mouth was open, his eyes partially open; his body still warm; his finger nails were bluish in color. The vial found in the deceased's pocket was labeled 'Sol. Cyanide of Potassium,' with the name of Neil Dahl as the druggist printed thereon. A glass or tumbler was found on the stand, containing about half a teaspoonful of the liquid, which the doctor pronounced cyanide of potassium. He smelled the contents of both the tumbler and the bottle, and pronounced the solution in the glass the same as that in the bottle. Mr. Schayer tasted and smelled the contents of the glass, and said that it was like bitter almonds. It was also in evidence that cyanide of potassium tastes bitter, and has an odor of bitter almonds. Another witness--Mr. Levy, a druggist--examined the contents of the bottle and glass, and described such contents as having an odor 'like bitter almonds, or prussic acid.' The evidence tends to show that cyanide of potassium, placed upon the tongue or lips, will give them a brownish hue, and that the lips and tongue of the deceased were of such a hue. There were some stains upon the lips, which are described as similar to that which would be produced from drinking from a glass. There were a few drops on the chin, which had also discolored the skin. It is in evidence that cyanide of potassium, with syrup of lemon, will discolor the skin, making it a brownish hue. It is also in evidence that on the 10th day of March, 1892, Mr. Boehm procured a bottle of cyanide of potassium from Dr. Muir, his family physician; that such liquid was at the time colorless; that cyanide of potassium is a deadly poison, with the effects of which Mr. Boehm was familiar. It is also shown that the prescription given by Dr. Muir to Mr. Boehm contained syrup of lemon, and there is some evidence tending to show that this compound will take on a brownish hue with the lapse of time. Shortly after the discovery of Mr. Boehm's body, it was visited by Mr. Rollins, the undertaker. Mr. Rollins appeared in answer to a message for the coroner, who was out, Rollins and the coroner occupying offices together. Mr. Rollins caused the body to be removed to his undertaking establishment. He says that he examined the contents of the vial, and that the odor was the same as the odor of preparations used by them in cleaning silverware, which preparation was cyanide of potassium. He...