Ross-Lewin v. Germania Life Ins. Co.

• Decision Date: 10 October 1904
• Citation: 78 P. 305,20 Colo.App. 262
• Parties: ROSS-LEWIN et al. v. GERMANIA LIFE INS. CO.
• Court: Colorado Court of Appeals

78 P. 305

20 Colo.App. 262

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

Court of Appeals of Colorado

October 10, 1904

Appeal from District Court, Arapahoe County.

Action by Geo. E. Ross-Lewin, trustee, and another, against the Germania Life Insurance Company. From a judgment for defendant, plaintiffs appeal. Reversed.

Charles J. Hughes, Jr., Bret Harris, and T.H Hood, for appellants.

F.A Williams and Greeley W. Whitford, for appellee.

THOMSON P.J.

On the 23d day of October, 1891, the Germania Life Insurance Company executed and delivered its policy of insurance to Jacob Boehm, whereby it promised to pay him $30,000 on the 23d day of October, 1911, if he should then be living, or, in case of his death before that time, to pay the same amount to his executors, administrators, or assigns. On the 11th day of November, 1891, Boehm assigned the policy to George E Ross-Lewin, in trust for the First National Bank of Denver to which institution Boehm was indebted in a sum exceeding the amount named in the policy. Boehm died on the 14th day of March, 1892, and the assignee brought this suit to recover the money payable by the terms of the policy. The defendant answered, admitting all the allegations of the complaint, but in avoidance pleaded a condition annexed to the policy to the effect that if, within three years from the date of the policy, the insured should die by suicide, whether sane or insane at the time, the policy should be void; and averred that Boehm died by suicide. The judgment was in favor of the company, and the plaintiff appealed.

About 3 o'clock in the afternoon of the 14th of March, 1892, the dead body of Mr. Boehm was found on a bed in a room of the Windsor Hotel in Denver. An ounce vial was discovered in his vest pocket, labeled "Sol. Cyanide of Potassium," and about half full of a liquid pronounced by physicians who examined it to be cyanide of potassium. On a stand in the room a glass or tumbler was found containing a few drops of the same preparation. It appeared in evidence that the preparation was compounded for Boehm, and delivered to him on the 10th day of March, 1892, by a druggist whose name was on the label, upon a written prescription by a Dr. Meuer. Cyanide of potassium was shown at the trial to be a virulent poison, although sometimes prescribed by physicians as a medicine. According to the evidence, Boehm was in financial distress, and before his death was suffering from mental depression. The sole question for determination at the trial was whether he committed suicide. There was no direct proof that he did, and whether he did or not must be a deduction from circumstances. Upon the evidence admitted and the instructions given the jury found that he did.

Error is assigned to the giving and refusal of instructions, and to the admission of evidence. We think the instructions given correctly stated and applied the law governing the case, and substantially embraced all that the plaintiff asked, except a direction to return a verdict for the plaintiff for the amount claimed, the giving of which would have been improper. Over the plaintiff's objection the court allowed the testimony of a witness given in a former trial of the cause, and preserved by a bill of exceptions afterwards prepared, to be read to the jury, the witness having left the state, and being beyond the jurisdiction of the court, without any showing that an effort had been made to procure his deposition; and also admitted evidence of declarations of the deceased, made after the assignment of the policy, and shortly before his death, from which an intention to commit suicide might possibly be inferred. We do not think the court erred in overruling the objection to the testimony of the absent witness. In Emerson v. Burnett, 11 Colo.App. 86, 52 P. 752, we held that testimony given at a trial, in the presence of the court, and preserved as it was given, was evidence of as high an order as testimony given before an officer outside of the court, and put into the form of a deposition; and that it was not necessary, as a foundation for its introduction, to show that the deposition of the witness was not obtainable. See, also, Brown v. Willoughby, 5 Colo. 1. It is true that in a case subsequently decided by this court (Magnes v. Nursery Co., 59 P. 879) the learned judge who framed the opinion essayed to confine the rule to cases where a witness had suddenly removed from the jurisdiction. At a former trial of the latter case the parties had stipulated that an old bill of exceptions might be used as evidence; and the question was whether the stipulation, as framed, was exhausted by the use of the bill at that trial, or whether it bound the parties in subsequent trials. Construing the stipulation, we held that it was intended to be applicable to all trials; and that, therefore, the use of the bill was properly allowed at the particular trial which resulted in the judgment we then reviewed. This was the extent of the decision. Under that stipulation it was immaterial whether the witness was within or without the jurisdiction, and the question of the competency of the bill of exceptions as evidence in the absence of the agreement was not before us. The observations respecting the conditions upon which such evidence might be admissible were wholly foreign to the question decided by the court. They have, therefore, no binding force.

But what we have said does not dispose of the case. If the fact that Boehm deliberately and intentionally took his own life was established by competent evidence, the policy, by its terms, became void, and there could be no recovery, even by the assignee. It was contended that he did; and the sole question before us is whether certain evidence admitted by the court over the plaintiff's objection was properly received. Adolph Schayer, a friend of Mr. Boehm, testified that a month or six weeks before the death of the latter he was present at a conversation between Dr. Meuer and Mr. Boehm, in which the poisonous character of cyanide of potassium was discussed; that Mr. Boehm said to Dr. Meuer that he wanted some poison for the purpose of getting out of the way a favorite dog, and that Dr. Meuer suggested cyanide of potassium, saying it would cause instantaneous and painless death. The witness also testified that on the day of Mr. Boehm's death, about 10 o'clock in the morning, the two took lunch together at the Arcade restaurant on Larimer street; that the latter displayed much anxiety and agitation; that he was wishing for half past 12 o'clock to come, when an examination of his books in behalf of the First National Bank would be completed, so that he might know "where he was at"; that in the midst of the meal he left the lunch table and telephoned to his partner at his place of business; that on his return from the telephone he asked to be excused, saying that he was in a hurry, and must go to his store; that witness accompanied him to his store; that on the way he told witness that his store had been attached by the bank, and asked witness to be as good a friend to his wife as he (witness) had been to him; that witness thereupon searched him, and suggested sending for his wife, but he said, "By no means send for her." Earl B. Coe testified that he was Boehm's attorney, and was, on the occasion testified to by Schayer, also at Boehm's store; that he was about to leave for Arizona, and that while in the store Boehm gave him a bottle of whisky, saying, "It is something to think of me on your trip."

Before proceeding to a discussion of this evidence, we think it would be well to notice a portion of the testimony of Dr Meuer, one of the defendant's witnesses, and of A.J....