12 N.W.2d 615 | Minn. | 1943
Defendant maintains a juvenile insurance department and an adult department. In the former, certificates are issued upon the lives of children less than 16 years of age. The monthly premium is 15 cents. The juvenile certificate may be exchanged for an adult certificate when the child insured becomes 16 years old, and so continues until the child reaches the age of 18 years and for 30 days thereafter. Hereinafter plaintiff will be referred to as Anton, Sr. and his insured child as Anton, Jr. Anton, Jr. was born September 12, 1921. His insurance was issued October 8, 1923, and he continued to be such member in good standing until his death. On October 8, 1939, Anton, Jr. was instantly killed in an automobile collision.
Plaintiff pleads waiver and estoppel in various ways; but, insofar as these are conclusions of law, they are ineffectual on a motion for judgment on the pleadings. He alleges that it was the custom and practice of defendant's local lodges to transfer or exchange the juvenile certificate for an adult certificate; that the secretary of Lodge 30, to which plaintiff belonged, promised plaintiff that he would let plaintiff know when Anton, Jr. would be of age for transfer or exchange of his juvenile certificate for an adult certificate, but failed to do so. There is no allegation that the juvenile *305 certificate was left with the secretary, or that the secretary was informed of the adult certificate desired. It is provided in the bylaws of defendant that if the adult certificate desired does not exceed the sum of $500 no medical examination is required; but if in excess of that amount a medical examination must be had.
The last sentence of Minn. St. 1941, §
"* * * Neither the person who originally made application for benefits on account of the child, nor the beneficiary named in the original certificate, nor the person who paid the contributions, shall have any vested right in the new certificate, the free nomination of a beneficiary under the new certificate being left to the child so admitted to benefit membership."
It seems to us that the quoted sentence from our statute, applicable to defendant, bars recovery. Anton, Jr. never nominated a beneficiary. Anton, Sr. was prohibited from so doing. Anton, Jr. never selected the certificate or policy he desired. No adult certificate was ever issued by defendant, nor did Anton, Jr. ever request it or surrender his juvenile certificate or request the issue of an adult certificate in exchange therefor. The juvenile certificate was a term life insurance contract. So would the adult certificate have been if issued. Term life insurance contracts cannot ordinarily be created by waiver or by estoppel. It is only after such a contract is in existence that waiver or estoppel may affect its performance or enforcement.
The trial court in the memorandum attached to the order said:
"I am of the opinion that the rules creating waiver of conditions contained in life insurance policies referred to in the memoranda submitted by counsel for plaintiff are not applicable to the situation which existed under the admitted allegations of the pleadings. Without restating them, those rules, in general, relieve the insured or the beneficiary from the effect of noncompliance with conditions of the policy, where such noncompliance is due to conduct of agents of the insurer, for which the insurer is held liable, either because *306
of having conferred apparent authority, or having ratified the conduct in question, or because of estoppel. But the waiver is availed of to permit recovery under an existing contract whose terms are claimed to have been violated. No case cited by counsel deals with the claimed right to have a policy issued which it is claimed should have been issued but was not because of the conduct of the insurer's agent. On the other hand, the case of Pinske v. Garfield Farmers' Mutual Fire Insurance Co.,
The trial court also cited the last sentence of Minn. St. 1941, §