41 Wash. 592 | Wash. | 1906
The complaint alleges, in substance, that Thomas O. Hopkins, one of the appellants in this case, en
The policy, which is the basis of the complaint and made a part thereof, provides unequivocally for am endowment policy and for an endowment fund, expressly providing that, if the holder of the certificate shall keep the same good by promptly paying all the dues and assessments, and survive until the 18th day of March, 1898, he shall at said date surrender the certificate to the association and receive the sum of $1,000 from the endowment fund. It then proceeds to state how the endowment fund shall be supplied, by assessments at certain rates, etc., which explains the allegation made in the complaint that the plaintiffs’ right of payment under the endowment provision was postponed until the endowment fund should be supplied by assessment.
Whether the contract provides for any other character of payment, it is not necessary in this case to determine, but, conceding that there was a choice of two rights given by the terms of the contract, we think there was no waiver of the right to receive the $1,000 provided for in the policy at the expiration of ten years, and which was demanded by the appellants. The case is argued here on the proposition alone that the complaint did not state facts sufficient to constitute a cause of action, and the action of the court in sustaining the demurrer must have been upon the theory of waiver or estoppel, that the appellants, by proceeding after the ten years had expired, to pay the regular premiums on the policy,
But we are of the opinion that the court did not place a proper construction upon this complaint. A waiver is defined to be the intentional relinquishment of a known right, and there can be no waiver unless the person against whom the waiver is claimed had a full knowledge of his rights. 29 Am. & Eng. Eney. Law, 1093, and cases cited. It was held, in Hamilton v. Home Fire Ins. Co., 42 Neb. 883, 61 N. W. 93, that knowledge of the existence of a right and the intention to relinquish it must concur to create an estoppel by waiver'. In this case, if the allegations of the complaint are true — and they must be taken to be so, those which are well pleaded — the assured did not have a full knowledge of his rights; for according to the representations made to him by the insurance, company, it was necessary for him to make these payments during the time the company was making arrangements to pay him the amount of the policy, in order that the policy should not become void. It was upon this representation that he acted.
Heither will waiver be implied from slight circumstances^ but must be evidenced by an unequivocal and decisive act clearly proven. 29 Am. & Eng. Ency. Law 1105. These people were old, inexperienced in business affairs, and anxious to keep their policy from becoming void; and this state of ignorance, together with the representations which were made to them by the company’s agent, was the cause of the payments which were relied upon as a waiver of their rights under the endowment provision of the contract and an acceptance of the other provisions of the policy. It was held, in Fulton v. Metropolitan Life Ins. Co., 19 N. Y. Supp. 660, that the failure to read a contract would not bar relief when, if relief was afforded, no injury would happen to others, and particularly when the person to whom money was paid by mistake knew, or ought to have known, that he was not entitled to receive it. How much stronger is this ease, where the in
Neither'can it he inferred that a party waives his right under a contract "by making a payment thereunder, while at the same time making demand for his rights. Griffith v. Newel (S. C.), 48 S. E. 259. It is also announced in 29 Am. & Eng. Ency. Law, 1095, that the validity of a waiver requires that it shall have heen made intentionally and voluntarily ; that voluntary choice is of the essence of waiver, and the view that waiver is a legal result operating upon a certain state of facts, independent of intent, has been declared to be without foundation. The same authority, on page 109 62 further declares, in accordance with the authorities cited, that the existence of an intent to waive is a question of fact, and must be made clearly to appear.
It was said by this court in David v. Oakland Home Ins. Co., 11 Wash. 181, 39 Pac. 443, where the parties were endeavoring to adjust a loss, that so long as the insured was given the right to suppose that the question of adjustment was an open one, he had the right to assume that the condition of the policy as to the time for the commencement of an action thereon had been waived by the company, and such waiver would continue until, by some definite action on its part, the company had notified the insured of the rejection of its claim, after which he would have a reasonable time in which to commence an action upon the policy. As sustaining this contention, see, also, Birge v. Browning, 11 Wash. 249, 39 Pac. 643; Elliott v. Puget Sound etc. S. S. Co., 22 Wash. 220, 60 Pac. 410; Huntington v. Lombard, 22 Wash. 202, 60 Pac. 414.
Waiver as applied to insurance is identical with estoppel. May, Insurance', § 505, says that,
“ ‘Estoppel’ and ‘waiver,’ though not technically identical, are so nearly allied, and, as applied in the law of insurance, so like in the consequences which follow their successful application, that they are used indiscriminately by the courts.”
But the principle of estoppel should he applied in this case to the respondent. It is one of the fundamental principles of law, based upon a universally recognized principle of morals, that one should not be allowed to take advantage of bis own wrong, and according to the complaint, the payments were made by reason of false representations made by the respondent, inducing the fear on the part of the appellants that their policy would be rendered void if such payments were not made; and although some years have elapsed since the demand for these payments was made, during which time they have continued, yet they were induced in the first instance by the wrongful act of the respondent, at which time it informed the appellants that it would notify them when it was ready to pay the policy, and not having so notified, and having by its wrongful acts compelled them to commence making these payments, the law will not too closely compute the time within which the-payments should cease, hut will presume that the later payments were made with the same understanding, and by reason of the same representations, that the earlier ones were made.
The complaint, in our judgment, stating a cause of action, both as for the recovery of the endowment and of the money jpaid through mistake and misrepresentations, the judgment
Mount, O. J., Grow, Rudkin, Fullerton, and Hadley, JJ., concur.