Lampkin v. Travelers' Ins. Co.

• Citation: 11 Colo.App. 249,52 P. 1040
• Parties: LAMPKIN v. TRAVELERS' INS. CO.
• Decision Date: 11 April 1898
• Court: Court of Appeals of Colorado

52 P. 1040

11 Colo.App. 249

LAMPKIN v. TRAVELERS' INS. CO.

Court of Appeals of Colorado

April 11, 1898

Error to district court, Las Animas county.

Action by Lou Lampkin against the Travelers' Insurance Company. Judgment for defendant. Plaintiff brings error. Reversed.

E. Bell, John L. Thomas, and W.B. Morgan, for plaintiff in error.

Yeaman & Gove, for defendant in error.

WILSON J.

This was an action to recover on a policy of accident insurance. Plaintiff was the beneficiary named in the policy in the event of accidental injuries resulting in the death of the assured. The case comes into this court for the second time. Insurance Co. v. Lampkin, 5 Colo.App. 177, 38 P. 335.

On its former appearance, the principal error assigned, and the one upon which the court based its judgment of reversal, was that the trial court had erred in sustaining plaintiff's demurrer to the fifth defense set up in the answer. This defense was as follows: "Now comes the defendant, the Travelers' Insurance Company, and, by leave of court first had and obtained, amends its fifth defense herein, and for such fifth defense alleges: First. That on the 22d day of November, 1891, said Joseph R. Lampkin made his written application to this defendant for an accident insurance policy upon the life of the said Joseph R Lampkin, for the sum of two thousand dollars insurance in case of accidental death, and in said written application made certain written statements of fact as the basis for said policy of insurance, which said statement of facts in said application the said Joseph R. Lampkin warranted to be true. Second. That in said written application the said Joseph R. Lampkin stated as a fact which he warranted to be true that the plaintiff herein, Lou Lampkin was the wife of the said Joseph R. Lampkin. Third. That the defendant was, at its office in the city of Hartford, in the state of Connecticut, induced to execute and deliver to said Joseph R. Lampkin the policy of insurance in the complaint set forth, and to thereby become an insurer as therein set forth, upon the faith of said statement of facts in said written application contained, and the said policy of insurance in the complaint set forth was executed and delivered to the said Joseph R. Lampkin as aforesaid, as appears upon the face of said policy of insurance, in consideration of the warranties in said application for said policy of insurance made, together with an order (for moneys therein specified) on the Atchison, Topeka & Santa Fé Railroad Company. Fourth. That said statement in said application contained, that the plaintiff herein was the wife of the said Joseph R. Lampkin, was false, and known by the said Joseph R. Lampkin to be false, at the time he made the same; that said Lou Lampkin, the plaintiff herein, was not at the time said application was made, or at any other time, the wife of the said Joseph R. Lampkin. Defendant further avers that at the time of making said application and said statement of facts the said Joseph R. Lampkin was lawfully married to one Carrie Lampkin, who was then residing in the state of Illinois; that the said Joseph R. Lampkin had, at the time of making said application and statement of facts abandoned his lawful wife, Carrie Lampkin, and was then living in adultery with the plaintiff herein, Lou Lampkin. Fifth. That the facts last above stated were material to be known to this defendant, and material to the risk assumed in issuing said policy of insurance, and if said facts had been known to this defendant the policy of insurance sued on herein, and set forth in the complaint in this action, would not have been made or issued by this defendant, nor would this defendant have made or issued any policy of insurance whatever to the said Joseph R. Lampkin." The cause was remanded, and upon second trial in the district court, after the conclusion of the introduction of evidence on behalf of plaintiff, a judgment of nonsuit was granted and rendered upon the motion of defendant. Plaintiff now brings the case here, complaining that this judgment was erroneous, and assigning numerous errors. In arriving at a determination of the issues presented, it will be necessary for us to consider only three of the grounds upon which the motion for nonsuit was based and sustained.

1. A provision in the policy required that "immediate written notice, with full particulars, and full name and address of the assured, is to be given said company, at Hartford, of any accident and injury for which claim is made"; and it was further provided that, unless affirmative proof of death or accident was so furnished within seven months from the time of the accident, all claims based thereon could be forfeited to the company. Defendant claims that this notice and proof of death was a condition precedent to plaintiff's recovery; that the burden of proof was on plaintiff to establish it; and that therein she wholly failed. The plaintiff testified as to the notice of death that "the company was notified by letter"; that "the papers were made out,--death proofs made out,--and sent to the company"; and that this was done during the same week and about three days after the death of the assured, which was on the 9th day of December, 1891. There was also offered and received in evidence a letter to the plaintiff from Mr. Lesem, state agent of defendant, dated at Denver, on December 14, 1891, in which he acknowledged receipt of the death proofs, and stated that they would be referred that day to the home office. Another letter from Mr. Lesem, dated February 29, 1892, in reference to a letter of inquiry from plaintiff, stated that the medical adjuster of the company had been in Denver, and taken with him to Hartford, the headquarters of the company, all of the papers in the case. There was also offered in evidence a letter from the company to plaintiff, dated at Hartford, February 23, 1892, replying to a letter from plaintiff. In this letter the company stated that it had been advised by counsel for Mrs. Carrie Lampkin that she was the lawful wife of the deceased, and that plaintiff was not, and that, if this was the case, there was no insurance in force, and the policy was void. The letter added: "And there the matter rests until the claimant has submitted satisfactory proof." In face of the positive testimony of plaintiff that she had forwarded to the company the proofs of loss, we think it was clearly error in the court to have sustained a nonsuit upon the ground that there was a failure in this proof. Plaintiff could not be defeated on the ground that she had failed in this proof by reason of the fact that she said she could not remember what was contained in the proofs of loss. By her evidence that she had forwarded the proofs of loss, she made out at least a prima facie case, and, if defendant relied upon any defect in the proofs, the burden was upon it to show such defect. Even, however, if this were not the case, the letter from defendant offered in evidence cannot be construed otherwise than as a refusal to pay the loss unless plaintiff first made proof that she had been the lawful wife of deceased. This she would not have been required to state or show in her preliminary proofs of loss, and the refusal must therefore be taken as a positive refusal to pay, and not on account of any failure in or want of preliminary proofs. In such case, the company cannot now be heard to complain of such failure or want. It waived this defense, if it ever existed, by refusal to pay upon the ground that there was a misrepresentation in the policy as to the relationship which existed between the assured and the beneficiary. Insurance Co. v. Manning, 3 Colo. 224; Insurance Co. v. Smith, Id. 422.

2. The next ground of the motion for nonsuit requiring our notice is that plaintiff had not shown that she was the wife of the insured, but, on the contrary, it appeared from the evidence that the assured had a lawful wife living at the time, and that plaintiff knew it. The motion does not state at what time the evidence disclosed that the assured had a lawful wife living, nor at what time plaintiff knew it, but we will assume that it intended to charge that it was at the time when the pretended marriage between plaintiff and the assured took place, and also when application was made for the policy in question, and when it was issued. Waiving the question as to whether or not the burden was on plaintiff in the first instance to prove that she was the lawful wife of the assured,--which we by no means concede, however,--did it appear from plaintiff's evidence that the assured had a lawful wife living at the time when the alleged contract of marriage with plaintiff took place or when he made application for the policy? We think that it did not. All of the evidence upon this point and upon which defendant relies, was given by the plaintiff herself. It was contained in the following interrogatory and answer on her cross-examination: "Q. At the time of your marriage, you knew Joseph Lampkin had another wife? A. I knew he had had." In answer to another question as to how she had knowledge of it, she said: "I heard it from other parties." Upon her redirect examination, she testified that before she married Lampkin she heard that he had been divorced from his former wife. We do not think that this testimony was at all sufficient to sustain the contention of defendant. It was hearsay testimony of the weakest and most unsatisfactory character; and then, if she is bound by the report of the assured's previous marriage, on the ground that, the relation having been shown to exist, it is presumed to continue, why should she not be given the benefit of the information coming to her that he had been previously divorced? It is true...