Southern Surety Co. v. Farrell , 79 Colo. 53 ( 1926 )

FARRELL had a judgment on trial to the court against the Southern Insurance Company upon a sickness clause in an insurance policy, and the company brings error. The judgment was right.

The first objection is that the disability was not due to a cause expressed in the policy. The policy provides for payment of sick indemnity only in case the disability is caused solely by a sickness arising after the date of the policy. The point is made by the company that the evidence shows conclusively that, although plaintiff contracted la grippe within three months after said date, yet it appears from his physician's report made seven days after the patient had called him, that he had "chronic cardio vascular syndrome"; that this chronic condition was part of the cause of his disability, and the same was therefore not caused solely by a sickness which began during the life of the policy. Dr. Osborn, called by plaintiff, testified that this chronic condition could not have come suddenly upon him, but nowhere is it shown that it might not have come on within three months, which would be within the life of the policy. This point is not well taken.

The second point is that while plaintiff pleaded performance of conditions on his part under Code 1921, § 72, he did not prove it, though it was denied. He proved waiver. This he might do under allegation of performance. Atlantic Ins. Co. v. Manning, 3 Colo. 224. It is claimed no waiver was proved, but the company accepted several premiums while the sick man was continuously neglecting to give his physician's monthly report, as required by the policy, which is the non-performance relied on. This was done with knowledge by the company's agent who received the money, that the sickness was continuing. This was a waiver of the requirement.

The company pleaded that plaintiff in his application falsely and knowingly stated his physical condition was sound when he had arterio sclerosis; that the policy was issued in reliance upon that representation. The representation does not appear to be a warranty and the plaintiff is not shown to have known of this condition. The representation, therefore, if false, was without consequence.

Supersedeas denied and judgment affirmed.

MR. CHIEF JUSTICE ALLEN and MR. JUSTICE WHITFORD concur.

On Rehearing.