Travelers' Ins. Co. of Hartford v. Murray

• Decision Date: 27 April 1891
• Citation: 16 Colo. 296,26 P. 774
• Parties: TRAVELERS' INS. CO. OF HARTFORD v. MURRAY.
• Court: Colorado Supreme Court

26 P. 774

16 Colo. 296

TRAVELERS' INS. CO. OF HARTFORD v. MURRAY.

Supreme Court of Colorado

April 27, 1891

Commissioners' decision. Appeal from Lake county court.

On the 17th of August, 1886, appellant issued and delivered to M. J McDonald, at Leadville, a policy of insurance, called an 'accident policy,' on his life, for $1,500, payable in case of his death, to his mother, Margaret Murray (appellee.) McDonald, at the time of securing such policy and for a long time previous thereto, and for some time subsequently, up to the time of the injury resulting in death, was employed as fireman on an engine of the Denver & Rio Grande Railway. On the 28th day of January, 1887, McDonald, while in the discharge of his duties upon the engine, received an unjury, supposed to be from slipping and falling, striking his bowels upon some part of the machinery, causing rupture and inguinal hernia. An attempt to reduce it, and keep the protruding portion of the bowels in place by ordinary and artificial methods, proving unsuccessful, and the hernia becoming strangulated, in order to save his life a surgical operation was performed, which failed to accomplish that result, and on the 14th of February following he died. The appellant refused to pay the sum insured, and the mother, beneficiary under the policy, brought suit. The policy of insurance is copied entire in the complaint, the only portion of which necessary to a discussion and proper understanding of the case is as follows: 'This insurance does not cover disappearance; nor injuries of which there are no visible mark upon the body; nor accident nor death or disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or so afflicted: * * * Medical or surgical treatment; * * * disease or bodily infirmity; hernia, fits, vertigo, sleep-walking.' The written application of the deceased for insurance was put in evidence by appellant, in which occurs the following paragraph, which is all that is considered necessary to be copied: 'I have never had, nor am I subject to, fits, disorders of the brain, or any bodily or mental infirmity, except as herein stated.' The special defenses pleaded in the answer, and relied upon by the appellant, after general traverses of the allegations in the complaint, were, in substance-- First, that by the terms of the contract of insurance it was agreed that the policy of insurance should not cover death resulting wholly or partly, directly or indirectly, from hernia, and that the death was the direct result of hernia; second, that it was agreed that the policy of insurance should not cover death resulting wholly or partly, directly or indirectly, from medical or surgical treatment, and that the cause of death was medical and surgical treatment, and no other cause; third, (in the amended answer,) that the application of deceased contained a warranty that he never had been, prior to such application, subject to any bodily infirmity, that the warranty was not true, and that deceased had hernia for a long time prior to making such application, and was at the time of the application subject to hernia,--to which replications were filed putting in issue the allegations of the answer. A jury having been waived, the cause was tried to the court, resulting in a judgment for appellee for $1,500 and costs.

BISSELL C., dissenting.

Markham & Dillon and Harry Carr, for appellant.

J. L. Murphy and Browne & Putnam, for appellee.

REED, C., ( after stating the facts as above.)

Nearly all the errors assigned are based upon the admission and rejection on evidence; the first six being directed to the supposed error of the court in allowing Dr. Heron, the attending physician, and Patrick Harvey, the locomotive engineer under whom the deceased was employed, to testify to the statements made by the deceased immediately after the injury was received, in regard to the manner and character of the accident by which the injury was received. It appears from the evidence that no one saw the accident, or knew of its occurrence or the injury, until nearly half an hour after its occurrence; and that deceased was not conscious of having received serious injury, and continued to perform his duties for about that length of time, when the engineer observed the changed appearance and apparent suffering of his fireman, and made inquiries in regard to its cause. The statements made to the engineer, and testified to by him, and those made to the physician, and testified to by him, being all the evidence in regard to the character of the accident, and the manner in which it occurred, it is insisted were hearsay, and incompetent, and erroneously admitted. It appears from the record that objections were made to the admission of such testimony by appellant's counsel, on the grounds above stated, and the court admitted the physician's testimony 'subject to the objection to be decided upon the final hearing,' and afterwards admitted the engineer's testimony 'subject to the motion to strike out.' The record does not show that any further objection or motion was made, or that the ruling of the court was afterwards or otherwise expressed, and no exception appears to have been taken at any time. The exception at the close of the trial was in these words: 'To which ruling of the court in finding the issues in favor of said plaintiff, and against said defendant, and in rendering judgment upon said finding in favor of the plaintiff and against the defendant, the said defendant, by his counsel, then and there excepted.' This cannot, in any sense, be construed as an exception to the admission of the testimony of the physician, the engineer, or any other witness. Hence, under the well-established rule of this court, we are relieved from the necessity of passing upon the admissibility of the testimony. The cause having been voluntarily submitted by both parties to a trial by the court without a jury, the testimony having been received by the court subject to a decision as to the competency thereof upon final hearing and upon a motion to strike out, and no further challenge to the testimony having been interposed, and no exception whatever having been reserved, we cannot properly sustain the assignments of error based upon the admission of said testimony. We may reasonably presume that counsel supposed at the trial, as we do now, that the court of its own motion disregarded all improper testimony, and based its finding and judgment upon competent evidence only. Rollins v. Board, 15 Colo. ----, 25 P. 319.

The questions to be determined upon the trial were-- First. Did the deceased, while following his avocation and performing his duties, receive an injury which caused his death? Second. Was such injury one against which he was insured by the appellant? Third. Was the policy of insurance void by having been obtained through fraudulent misrepresentations of the insured?

The proof of an injury having been received by the deceased was not dependent upon his declarations to the engineer or to his physician. If it had been, the admission of the testimony would probably have been more strenuously resisted at the trial. That there had been serious injury was obvious; its physical effects were patent and apparent. A brother of the deceased testified to seeing a bruise and discoloration upon the bowels of the deceased shortly after the alleged accident. The fact of the injury was at once established by the examination of the physician, and his testimony in regard to it, and supported by that of all the physicians who made an examination. The...