33 Wash. 577 | Wash. | 1903
Appeal from a judgment rendered in favor of the administrator of the estate of Joseph M. Rex against the Mutual Life Insurance Company of Eew York, on a policy issued Kovember 8,1889, upon the life of Joseph M. Rex. Rex paid but one semi-annual premium, which was a
The real question at issue is, was the conduct of Rex such as to warrant the action of the company in declaring the contract rescinded, and proceeding with its business and making its calculations as though the contract were so rescinded. In speaking of a case similar in ’ principle, though somewhat different in facts, the court, in Smith v. New England Mutual Life Ins. Co., 63 Fed. 169, said:
“The assured acquiesced in the company’s position—that his policy had lapsed—and accordingly neither paid nor*581 tendered subsequent premiums, but treated tbe policy as a security simply for the interest acquired under the statute. Had his life been continued the claim now made would never have been urged or thought of; his early death alone suggested it.”
We are satisfied that the thought never occurred to Hex during his lifetime that he had a claim against this company on the policy which had been issued so many years before ; or, if he did, after the lapse of any appreciable time, it was a dishonest thought, for he knew that he had not performed the duties which devolved upon him under the contract, and that he had no rights thereunder; and there seems to be no just reason why his administrator should demand rights which he had virtually waived. In Shutte v. Thompson, 15 Wall. 151, 21 L. Ed. 123, where a party was standing upon his statutory right in relation to the notice concerning depositions, the court said, that it was not doubted that all the provisions of the statute respecting notice to the adverse party could be waived by him; that a party could waive any provision, either of a contract or of a statute, intended for his benefit; and that, if a course of action on his part had misled the other party, he ought not to be allowed to avail himself of his original rights, because under such circumstances he would be availing himself of what was substantially a fraud, and that he should not he allowed to reap any advantage from his own fraud.
This is a mutual life insurance company, and in the case of Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 20 Sup. Ct. 906, 44 L. Ed. 1088, a case which involves the construction of the statute relied upon here, the court, without actually deciding the proposition, said:
“How, whether the insurance company, if the law of Hew York be applicable, could insist upon a forfeiture without giving the notice prescribed by the statutes of that*582 state, and, enforcing it, forfeit all premiums paid, all obligation for the return of the surrender value, all right of the insured by subsequent payments to continue the policy in force, is one question. But it is a very different question whether the executrix of the insured, after his long delinquency in the payment of premiums, can enforce the contract as against the other insured parties, thereby diminishing their intetest in the accumulated reserve. Ordinarily no one can enforce a contract unless on his part he performs the stipulated promise, and it may be that this rule is operative in this case.”
And while the court declined to decide the question because it was not necessary for the determination of the case, it evidently assumed that the rights of the policy-holders in mutual companies were worthy of consideration. So that in this ease, this being a mutual life insurance company, the action of Bex, in seemingly abandoning his contract, affects every stockholder in the company, thereby, if he should prevail, diminishing their interest in the accumulated reserve.
Brom every consideration of justice and fair dealing, we think the respondent should not be allowed to recover in this case. The judgment will therefore be reversed, and the cause remanded With instructions to render judgment in favor of the defendant for costs.
Buixebton, O. J., and Hadley, Mount, and Andees, JJ., concur.