Travelers' Ins. Co. v. Lampkin

• Citation: 38 P. 335,5 Colo.App. 177
• Parties: TRAVELERS' INS. CO. v. LAMPKIN.
• Decision Date: 22 October 1894
• Court: Court of Appeals of Colorado

38 P. 335

5 Colo.App. 177

TRAVELERS' INS. CO. v. LAMPKIN.

Court of Appeals of Colorado

October 22, 1894

Appeal from district court, Las Animas county.

Action by Lou Lampkin against the Travelers' Insurance Company on a policy of accident insurance, in which plaintiff was named as beneficiary. From a judgment in favor of plaintiff defendant appeals. Reversed.

Yeaman & Parsons and Frank E. Gove, for appellant.

Everett Bell and W.B. Morgan, for appellee.

THOMSON J.

The complaint sets forth a policy of insurance issued by the Travelers' Insurance Company to Joseph R. Lampkin on the 22d day of November, 1891. The policy, which is denominated an "accident policy," provides for the payment to Lampkin of a weekly sum for loss of time, not exceeding 26 consecutive weeks, resulting from bodily injuries accidentally received during the term of insurance; and contains, in addition, the following agreement: "Or, if death results from such injuries alone within ninety days will pay two thousand dollars to Mrs. Lou Lampkin (wife), if surviving; in the event of her prior death, to the legal representatives or assigns of the insured." The complaint alleges that on the 8th day of December, 1891 Lampkin received an accidental bodily injury, which alone caused his death on the following day; avers the fulfillment by Lampkin of all the conditions of the policy, and the giving by plaintiff to the defendant of notice and proof of Lampkin's death in accordance with the terms of the policy. The consideration, as expressed in the instrument was, among other things, warranties in the application for the policy. One of the defenses interposed was that a written application for the policy was made by Lampkin to the defendant; that in this application he made certain statements as the basis for the policy, which he warranted to be true; that upon the faith of these statements the policy was issued and delivered to him; that among the statements was one that Lou Lampkin was his wife; that this latter statement was false, and known by Lampkin to be false at the time it was made; that Lou Lampkin was not his wife; that his lawful wife was Carrie Lampkin, whom he had abandoned, and that at the time of the application he was living in adultery with Lou Lampkin; that these facts were material to be known to the defendant, and material to the risk assumed in issuing the policy; and that, if they had been known to the defendant, the policy would not have been issued. A demurrer was sustained to this defense for insufficiency. The cause went to trial, which resulted in a verdict and judgment for the plaintiff, and from which the defendant has appealed.

There is considerable controversy between counsel as to the effect of the recital in the policy that it was in consideration of warranties in the application; defendant's counsel contending that this reference to the application imports it into the policy, and makes the two one contract. On the other side, however, it is argued that the words used in the policy with reference to the application are not sufficient to make it part of the policy, and that, therefore, the statements which it contains are not warranties. The following is the language of the policy referring to the application: "The Travelers' Insurance Company of Hartford, Conn., in consideration of warranties in application for this policy *** does hereby insure Joseph R. Lampkin," etc. We think this language sufficient to make the warranties in the application a portion of the policy. One of the elements of a contract is its consideration. The expressed consideration was, among other things, certain warranties of the insured in the application made by him for the policy. The warranties are not set forth in the policy, but it specifies the application as containing them. To ascertain what they are involves an inspection of the application. The policy, as a contract, is incomplete without them, and the application, therefore, to the extent of the warranties which it contains, is necessarily a part of the instrument.

But it is further contended that, pursuant to a provision of our statute regulating insurance companies doing business in this state, the warranty relied on is not available as a defense to the action, because it is not plainly expressed in the policy itself. The provision referred to is contained in section 2232, Mills' Ann.St. That section is as follows "No life insurance company doing business in the state of Colorado shall make or permit any distinction or discrimination in favor of individuals, between insurants (the insured) of the same class and equal expectation of life, in the amount of payment of premiums or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes. Nor shall any such company or any agent thereof, make any contract of insurance or agreement as to such contract other than as plainly expressed in the policy issued thereon; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereof, or any valuable consideration or inducement whatever not specified in the policy contract of insurance. The penalty for violating this section shall be a fine of two hundred and fifty dollars; and the superintendent of insurance shall revoke the certificate of authority of any agent convicted of the violation of this...