ify]; and at the time of the said fire, the plaintiff had in said store a large quantity of such extra-hazardous goods. [Concluding part.] FORM No. 733-Denial of loss from peril or risk insured against. [Title of court and cause.] Defendant denies that the said building was destroyed [or injured] during the term of said insurance by [here state risks or perils insured against], but, on the contrary, the defendant alleges that the loss was occasioned and caused wholly by [here state the excepted peril which caused the loss]. [Concluding part.] FORM No. 734-Defense that vessel was unseaworthy. [Title of court and cause.] 1. [Allege provisions of policy, as to voiding the policy for unseaworthiness.] 2. That at and in the course of said voyage, and in reference to the said voyage, and to any damage which the said ship sustained in the course thereof, a regular survey was made on the day of 19, and that upon such survey the said ship was declared unseaworthy, by reason of her being [state particulars, showing a ground of her condemnation as unseaworthy]. [Concluding part.] Form of answer in an action on an insurance policy, setting forth the defense based on a provision that in case of loss the insured should within sixty days render to the company an account of the loss, signed and sworn to: Western Home Ins. Co. v. Thorp, 48 Kan. 239, 240, 28 Pac. 991. Form of petition in an action to recover a sum alleged to be due on a matured endowment coupon issued by defendant to plaintiff: Hogan v. Pacific Endowment League, 99 Cal. 248, 250, 33 Pac. 924. Form of petition in an action on a life insurance policy, containing a provision, relied upon by the defendant as not observed by decedent, that if the insured should become so intemperate as to impair his health or induce delirium tremens, the policy should become void: Pomeroy v. Rocky Mountain Ins. etc. Inst., 9 Colo. 295, 12 Pac. 153, 59 Am. Rep. 144. Form of petition in an action on an insurance policy, which did not properly describe the real estate on which the dwelling-house that was burned was situated: Kansas Farmers' Fire Ins. Co. v. Saindon, 52 Kan. 486, 488, 35 Pac. 15, 16, 39 Am. St. Rep. 356. Form of complaint in an action on a fire insurance policy on growing crops: Denver Fire Ins. Co. v. McClelland, 9 Colo. 12, 9 Pac. 771, 59 Am. Rep. 134. For defenses in an action at law upon a policy of fire insurance held sufficient as against general demurrer, see Slafter v. Concordia Fire Ins. Co., 142 Iowa 116, 120 N. W. 706, 708. For an agreed statement of the facts in an action to recover upon an insurance policy, see Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 418, 46 Pac. 25, 26. § 343. ANNOTATIONS.-Insurance. 1. Life insurance.—Essentials of a complaint in action to recover insurance moneys. 2. Insurable interest not required to be averred. 3. Defenses in action to recover insurance money. 4. Property Insurance.-General rule as to pleading loss. 5. Averments as to ownership. 6. General averment as to performance of conditions. 7, 8. Defenses.-Any breach pleadable. 9, 10. Defense of fraudulent overvaluation. 1. LIFE INSURANCE.-Essentials of a complaint in action to recover insurance moneys.-A complaint in an action to recover insurance moneys, under the rule as established in the state of Colorado, is only required to allege primarily, first, the contract of insurance; secondly, the happening of the contingency whereby the insurer became liable to pay by reason of the contract; and thirdly, the amount of the indemnity to which the insurer or his successors, in the event of his death, is entitled: Grand Lodge A. O. U. W. v. Taylor, 44 Colo. 373, 99 Pac. 570, 571; Penn Mutual L. Ins. Co. v. Ornauer, 39 Colo. 498, 90 Pac. 846; National Ins. Co. v. Sprague, 40 Colo. 344, 92 Pac. 227. 2. Insurable interest not required to be averred. In an action to recover insurance upon the death of the insured, it is not necessary for the plaintiff to aver any interest in the life of the insured. If the insurer relies on the defense that the plaintiff had no insurable interest in the life of the insured, it devolves upon it to plead and prove it. Where the question is not put in issue by the pleadings, the court rightfully refuses to submit it to the jury: Foresters of America v. Hollis, 70 Kan. 71, 78 Pac. 160, 3 Am. & Eng. Ann. Cas. 535. 3. Defenses in action to recover insurance money.-In an action to recover insurance money instituted by the representative of the deceased, the following is given as a statement of affirmative defenses, which, although not sustained by the evidence in the case, is a fairly clear and concise example of pleading affirmative defenses in such actions, to wit: (1) That in his application for insurance the deceased falsely and fraudulently represented that he was in good health and free from disease; that he had had no sickness during the past five years; that he had no disease of the kidneys or urinary organs; that he had not consulted a physician for four years prior to the date of his application; that in truth and in fact, at the time of making such application, the deceased well knew that he was not in good health nor free from disease; that he had consulted a physician about three months prior to the date of his application, and was by him informed that he was afflicted with a disease of the kidneys and urinary organs; that said representations were falsely and fraudulently made by the deceased for the purpose of obtaining said policies; and that the defendant relied on said false and fraudulent representations. (2) That in his application for insurance the deceased warranted the statements and answers therein made to be full, complete, and true, and that any untrue answers made therein or any concealment of the truth as to his health, physical condition, or personal or family history should forfeit and cancel the policies issued pursuant to such application; that the application contained the warranties and representations set forth in the first affirmative defense; that the defendant relied on such warranties and representations, and issued the policies in consideration thereof; and that the warranties and representations were untrue. (3) That the application provides that the policies should not take effect unless the first payment was made and the policies signed by the secretary and delivered during the continuance of the applicant in good health, and that at the time the first payment was made and the certificate signed and delivered the applicant was not in good health: Fer randini v. Bankers Life Assn., 51 Wash. 442, 99 Pac. 6, 7. 4. PROPERTY INSURANCE. General rule as to pleading loss.-A complaint in an action to recover upon a policy insuring against loss must allege facts bringing the destruction of the property within the protection of the policy; for example, where a policy insured plaintiff against loss arising from the death of his horses occurring from "disease or accident," a pleading is insufficient on demurrer where there is no averment that either disease or accident was the cause of the death: Knutzen v. National L. S. I. Co., 108 Minn. 163, 121 N. W. 632; Griggs v. St. Paul, 9 Minn. 246 (Gil. 231); Newman v. Accident Assn., 15 Ind. App. 29, 42 N. E. 650; Weltin v. Ins. Co., 59 Hun 625, 13 N. Y. Supp. 700. 5. Averments as to ownership.-In an action to recover upon an insurance policy, an objection to the petition that it omitted to allege specifically that plaintiff owned the property insured at the time of the loss can not first be taken after judgment. Moreover, such an objection is without force where sufficient facts are alleged from which the ownership of the property at the time of the loss may be implied: Cox v. American Ins. Co., 137 Mo. App. 40, 119 S. W. 476, 478; Rodgers v. Insurance Co., 186 Mo. 248, 85 S. W. 369. 6. General averment of performance of conditions.-It is well settled under the Missouri authorities, that, under a general averment of performance of all conditions on his part to be performed, the plaintiff in an action on an insurance policy may prove any and all forms of waiver. It is said the proof of waiver is included in performance within the meaning of the allegation; but that the rule does not apply to other than insurance cases: Andrus v. Insurance Co., 168 Mo. 151, 67 S. W. 582; McCullough v. Insurance Co., 113 Mo. 607, 21 S. W. 207; Murphy v. Insurance Co., 70 Mo. App. 78; Winn v. Insurance Co., 83 Mo. App. 123; Wicecarver v. Mercantile etc. I. Co., 137 Mo. App. 247, 117 S. W. 698, 7. Defenses.-Defense to action upon fire insurance policy based upon violation of vacancy-permitting clause contained in the policy, considered: tional M. F. I. Co. v. Duncan, 44 Colo. 472, 98 Pac. 634, 638, 20 L. R. A. (N. S.) 240. Na 8. Any breach by the insured of a condition in the policy may be pleaded in defense in an action to recover thereon. It is a good defense to an action upon a policy of insurance to set out a breach of a condition under the contract imposing a duty upon the plaintiff to protect the property so far as practicable in case of fire, as where the defense alleges in this respect that the plaintiff permitted persons to enter the building after the fire, to handle and carry away some of the property covered by the policy, and to trespass upon the property: Slafter v. Concordia Fire Ins. Co., 142 Iowa 116, 120 N. W. 706, 708; Thornton v. Security Co. (C. C.), 117 Fed. 773; Oshkosh v. Manchester Co., 92 Wis. 510, 66 N. W. 525. 9. The defense of fraudulent overvaluation of property deemed sufficient: Slafter v. Concordia F. I. Co., 142 Iowa 116, 120 N. W. 706, 709; Behrens v. Insurance Co., 64 Iowa, 19, 19 N. W. 838; Bennett v. Insurance Co., 51 Conn. 504; American Ins. Co. v. Gilbert, 27 Mich. 429; Dunham v. Insurance Co., 34 Wash. 205, 75 Pac. 804; Hartford Co. v. Magee, 47 Ill. App. 367; Lycoming Co. v. Rubin, 79 Ill. 402; Baker v. Insurance Co., 31 Ore. 41, 48 Pac. 699, 65 Am. St. Rep. 807; Phenix Co. v. Pickel, 119 Ind. 155, 21 N. E. 546, 12 Am. St. Rep. 393; Titus v. Insurance Co., 81 N. Y. 410. 10. Defense of overvaluation held good as against general demurrer, and that it was error to sustain such demurrer thereto. Defense is as follows: "(5) For a further and 5th defense, this defendant says: That the policy of insurance so issued to the plaintiff by the defendant, as in the plaintiff's complaint set forth, contained the following provision: "This policy is made and issued subject to the foregoing stipulations, conditions and by-laws of the National Mutual Fire Insurance Company.' That article thirty-two of the by-laws of the defendant company is as follows: "The application, by-laws and policy constitute the entire contract between this company and the insured, and no officer, agent, or representative of the company is authorized, empowered, or permitted to make any other verbal or written agreement in reference to any matter pertaining thereto.' That article fifteen of the by-laws of the defendant corporation is as follows: 'All applications for insurance must be in writing, according to the printed forms prepared by the company. The description of the property and its location must be minute and particular, and the applicant must be responsible for the correctness of the application; and any misrepresentation in reference to said property shall void such policy, and no agreement or representation other than expressed in said application shall be binding upon the company.' That an application to the defendant by the plaintiff was made in writing for the issuance of the policy mentioned in complaint, which said application was duly signed by the plaintiff; that said application contained the following provisions: "The above statements, notes, and by-laws, as printed, shall be the sole basis of this contract for insurance between said company and the insured, and are hereby made a part of this policy, if issued. Having read or heard read the foregoing application, and fully understanding its contents, I warrant it to contain a full and true description and statement of the condition, situation as per diagram, value, occupation, and title of the property to be insured in the said company, and I warrant the answers to each of the foregoing to be true.' That said policy of insurance contained the following provision, to wit: "This entire policy shall be void if the insurer has concealed, or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof.' And the defendant further says that in the plaintiff's application for said policy of insurance the plaintiff falsely stated and represented that the cash value of the insured building was $1,500; whereas, in truth and in fact, the cash value of said building at the time of said application, and at all times thereafter, did not exceed the sum of $200": National M. F. I. Co. v. Duncan, 44 Colo. 472, 98 Pac. 634, 20 L. R. A. (N. S.) 340. CHAPTER XCVII. § 344. Complaints [or petitions] Form No. 735. By first endorsee against maker.... Page 1360 1360 1361 1361 endorser . 1361 Form No. 739. By subsequent endorsee against first endorser 1361 1362 1362 .... 1362 Form No. 743. By domestic corporation, payee, against for eign corporation 1363 Form No. 744. By payee as receiver against partners. 1363 1363 1364 Form No. 747. Averments as to partnership promissory note endorsed to plaintiffs 1364 Form No. 748. By partners on protested promissory note.... 1365 1366 Form No. 750. Upon a promissory note executed by an agent of a partnership .... 1366 Form No. 751. Upon a joint and several promissory note.... 1367 1367 · .... ...... Form No. 753. By payee of bill against acceptor for non-pay- Form No. 755. For non-payment of bill payable on specific date 1368 1368 1368 1369 1369 1370 1370 1371 Form No. 757. By payee against drawee and acceptor. .... Form No. 762. By subsequent endorsee of bill against first Form No. 763. By subsequent endorsee of bill against inter- ...... ..... Form No. 764. By subsequent endorsee of bill against last Form No. 767. Against a bank upon acceptance, followed by Form No. 768. Upon an accepted and assigned draft.. ...... Form No. 772. Omission to give notice excused 1371 1372 1372 1372 1373 1373 1374 1374 1375 1375 1376 1376 1376 1376 1377 Form No. 775. Defenses of want of consideration and fraud.. 1377 1378 $345. Answers. Form No. 773. Defense of payment before endorsement.. warranty of goods sold..... Form No. 777. Defense that note was executed for a pre-exist- Form No. 778. Defense of fraud in procuring note.... Form No. 781. Defense that defendant was a married woman, husband. ........ 1380 Form No. 782. Defense of unauthorized and fraudulent accept ance 1381 |
