Metropolitan Life Ins. Co. v. Lanigan

• Decision Date: 07 January 1924
• Docket Number: 10528.
• Citation: 74 Colo. 386,222 P. 402
• Parties: METROPOLITAN LIFE INS. CO. v. LANIGAN.
• Court: Colorado Supreme Court

222 P. 402

74 Colo. 386

METROPOLITAN LIFE INS. CO. v. LANIGAN.

No. 10528.

Supreme Court of Colorado

January 7, 1924

Department 1.

Error to County Court, City and County of Denver; E. J. Ingram Judge.

Action by Anna Lanigan against the Metropolitan Life Insurance Company. Judgment for plaintiff in the justice court, and defendant brings error to the county court of the City and County of Denver.

Affirmed.

Charles W. Waterman and William A. Jackson, both of Denver, for plaintiff in error.

H. O Neville and Albert S. Frost, both of Denver, for defendant in error.

ALLEN, J.

This is an action, originally instituted in a justice court, to recover upon two policies of life insurance which had been issued by the insurer upon the life of one Edward J. Lanigan one Policy being for $100 and the other for $200. There was a verdict and judgment for plaintiff. Defendant brings the cause here for review.

The insurance under the policies is payable 'to the executor or administrator of the insured.' The plaintiff below sues in her individual capacity as heir of the insured and as assignee of the other and remaining heirs. The plaintiff in error contends that the insured left debts, thereby necessitating administration. The evidence, however, in this respect, is sufficient to support a finding to the contrary. Therefore no administration was necessary. Waterhouse v Churchill, 30 Colo. 415, 70 P. 678. The heirs could maintain this action. 25 Cyc. 914; Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 366, 209 S.W. 77.

It is contended that the plaintiff never obtained any proper assignment of the interests of the other heirs of the insured before bringing this action. This contention cannot be sustained. The plaintiff testified that at the time of the death of the insured, the heirs, other than herself, informed her that the policies are her own and that she may have the proceeds from the policies. This testimony is strengthened by evidence that plaintiff alone paid the funeral expenses of the insured, and took care of him during his last illness. An assignment may be by parol, and may be inferred from the acts and conduct of the party. Chamberlin v. Gilman, 10 Colo. 94, 100, 14 P. 107.

Because plaintiff has obtained the right to sue under an assignment which may be deemed equitable, plaintiff in error contends that the justice court had no jurisdiction in this action. There is no merit to this contention because plaintiff is not seeking equitable relief. The action is one at law. 25 Cyc. 904.

It is further contended that the policy is void because of a provision therein that it shall be void 'if it be assigned' without the indorsement of the secretary of the insurer. Such provision is not applicable in the instant case, because the assignment here was not of the policy before the death of the insured, but of the cause of action accruing thereon after loss. 14 R.C.L. 1004. An assignment of a policy, and the right to recover upon it, after maturity, is valid, regardless of the conditions of the policy. Kerr on Insurance, 688.

The policies sued on contained a clause providing that the 'policy is void if the insured before its date * * * has been attended by a physician for any serious disease or complaint.' The plaintiff in error contends that a verdict should have been directed in its favor because a witness testified that in the year 1913 a physician and surgeon of Chicago 'operated upon' the insured for 'ulcers of the stomach.' There is no other testimony on that point, and on such evidence alone the jury was not bound to find for the defendant.

In relying on the forfeiture clause above quoted, the plaintiff in error places most stress on the proof of death particularly because the physician making the certificate states therein that the insured died of diabetes and that the duration of such disease was two years and six months,...