Union Mut. Life Co. of Iowa v. Bailey

• Citation: 99 Colo. 570,64 P.2d 1267
• Decision Date: 25 January 1937
• Docket Number: 13872.
• Parties: UNION MUT. LIFE CO. OF IOWA v. BAILEY.
• Court: Colorado Supreme Court

64 P.2d 1267

99 Colo. 570

UNION MUT. LIFE CO. OF IOWA v. BAILEY.

No. 13872.

Supreme Court of Colorado

January 25, 1937

En. Banc

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Action by Charles Folsom Bailey against the Union Mutual Life Company of Iowa. Judgment for plaintiff, and defendant brings error.

Affirmed.

Grant Ellis, Shafroth & Toll, of Denver, for plaintiff in error.

William E. Hutton and Bruce B. McCay, both of Denver, for defendant in error.

HOLLAND Justice.

The Union Mutual Life Company of Iowa issued its policy of insurance on the life of Clara H. Bailey of Colorado, payable to Charles Folsom Bailey, as beneficiary. Upon the death of the insured the beneficiary instituted this action in the district court of the City and County of Denver, to recover under the policy, and to reverse a judgment in his favor the company prosecutes a writ of error. The parties will be herein mentioned as plaintiff, the company, and insured.

The complaint contained four causes of action, all of which were withdrawn except the second, which in substance alleged the incorporation of the company under the laws of the state of Iowa and that it was doing a general life insurance business there, in the state of Colorado, and elsewhere in the United States; the issuance of its policy, dated September 3, 1930 which provided for payment of $1,000 upon proof of death of the insured; that the insured died May 25, 1934, in Denver, Colo.; that all premiums were paid to that date; that the policy was in full force; and that the company had refused to pay.

The company moved to quash service of summons on the ground that it was a foreign corporation, not doing business in Colorado, and not subject to suit therein; that the party on whom service had been made was not an agent of the company and 'for the reasons * * * stated the action was violative of defendant's right under the Fourteenth Amendment of the Constitution of the United States.' The motion was overruled and the company applied to this court for a writ of prohibition upon the ground that it was not doing business in Colorado and therefore not subject to the jurisdiction of the Colorado courts. A denial of the application is reported in Union Mutual Life Co. v. District Court, 97 Colo. 108, 47 P.2d 401, 402. Thereafter the company filed its answer alleging, inter alia, fraud and misrepresentation as to health of insured in her application for the policy. Bailey, plaintiff, demurred to this answer on the ground, among others, that a Colorado statute made the policy incontestable after it had been in force for two years, and that more than two years had elapsed since the issuance of the policy. At that stage of the proceedings, the parties stipulated as to the facts about which there was no dispute, to wit: Residence of the insured in Colorado; that the insured was induced to apply for the policy through hearing certain broadcasts made at the instance of the company over a radio station at Denver, Colo., and heard by the insured in Denver; that the insured's application for the policy was mailed by her in Denver addressed to the company at Des Moines, Iowa; that the policy was issued at Des Moines and Mailed to, and received in, Denver by the insured; that the record made in connection with the company's motion to quash in the district court, which later was filed in this court, in the matter of the petition for writ of prohibition, Union Mutual Life Co. v. District Court, supra, may be considered by the district court in connection with the demurrer and may be considered by this court, in case of writ of error, in connection with the ruling by the district court on the demurrer. Upon this record, including the pleadings and stipulation, the trial court sustained the demurrer to the company's answer, and, after the latter's election to stand thereon, judgment was entered in Bailey's favor for the amount of the policy and interest.

A comprehensive statement of the facts, then, as well as now, is contained in our opinion in the former Union Mutual Life Company Case. It is as follows:

'The petitioner is a life insurance company incorporated in Iowa and having its only place of business at Des Moines. For some years, and particularly during the time important to our inquiry, petitioner broadcast its advertsing programs over a Colorado radio station. The radio company agreed to receive, and promptly forward to petitioner at Des Moines, all inquiries concerning life insurance addressed to the station, in consideration whereof, and of the broadcasting facilities afforded, petitioner agreed to pay the radio company a sum equal to one-third of all premiums paid during the first year by the several policyholders obtained in the manner indicated. As the result of this arrangement pet

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