149 Minn. 118 | Minn. | 1921
Action on a policy of life insurance issued by the defendant to Kenneth R. Fletcher. The plaintiff, his mother, was the beneficiary. There was a verdict for the plaintiff, and the defendant appeals from the order denying its alternative motion for judgment or a new trial. The question is whether the evidence sustains a finding that the defendant waived the provision of the policy making it void.upon the entry of the insured into military service in time of war.
The plaintiff filled out the blank and forwarded it to the company. On May 12, 1919, the company acknowledged its receipt and transmitted blanks for furnishing final proofs of death. It said: “Legal notice of the death of the above mentioned policyholder having been received we now beg leave to transmit herewith blanks for furnishing final proofs of death. As it will be impossible to secure the attending physician’s affidavit, we shall accept in lieu thereof the original notification of your son’s death which you have received from the war department.”
The plaintiff submitted the required proofs of death. Under date of May 27, 1919, and soon after the receipt of the final proofs of death, the company denied liability upon the ground that the insured was killed in action while engaged in military service. It relied upon a condition in the policy as follows: • “MILITARY SERVICE AND NARCOTICS. This policy shall be void if the insured shall engage in army or naval service in time of war without the written consent of the company or shall become intemperate in the use of intoxicating liquors, chloral, cocaine or opium to the extent to impair the health of the insured.”
The defendant claims that the provision quoted exempted it from liability. It cites McCoy v. Northwestern Mut. Relief Assn. 92 Wis. 577, 66 N. W. 67, 47 L.R.A. 681; Elhart v. Pacific Mutual Life Ins. Co. 47 Wash. 659, 92 Pac. 419; Draper v. Oswego, C. F. R. Assn. 190 N. Y. 12, 82 N. E. 755; Ruddock v. Detroit Life Ins. Co. 209 Mich. 638, 177 N. W. 242. These cases, except the one from Washington which appears otherwise differentiated from the one at bar, involve excepted risks. In the Michigan case, as stated in the application, “military or naval service in time of war is not a risk assumed under any policy hereunder applied for”; and by the policy such a risk was “not assumed by the company.” The
The principle applied in Hendrickson v. Grand Lodge A. O. U. W. 120 Minn. 36, 138 N. W. 946, is substantially controlling. Waiver was there defined as “an intentional relinquishment of a known right.” And there, as in this case, the company after death -and with knowledge of the ground -of forfeiture requested and received proofs of death. 'The ■conduct of the defendant evidenced a purpose to pay, was consistent with -the continuance of the policy in force and inconsistent with a forfeiture, and justified the jury’s finding of a waiver.
The letters sent hy the defendant to the plaintiff were signed: “The Surety Fund Life Company, By S. A. Morgan, Secretary to the Medical Director.” The medical director testifies as to the duties of his secre
Order affirmed.