154 P. 990 | Idaho | 1915
Lead Opinion
This is an action to recover on an accident policy issued by the appellant to one Frank J. MeKune, the beneficiary named in the policy being his mother, Rose McKune, the plaintiff in this action.
The case was submitted to the lower court upon an agreed statement of facts, and thereupon the court made its finding of facts, conclusions of law and entered judgment in favor of the plaintiff for $1,000, that being the amount named in the policy of insurance. The appeal is from the judgment.
The following facts, among others, appear from the agreed statement of facts:
On November 8, 1912, Frank J. McKune made a written application to the defendant company for a policy of accident insurance, which policy is attached to and made a part of said stipulated facts. At the time McKune made said application he signed a pay order drawn on the Oregon Short Line Railway Company and delivered the same to the defendant insurance company, a copy of which order is attached to and made a part of the stipulation. Said application and order were received by the defendant company at its branch office in San Francisco, California, on November 19, 1912, and the company thereupon issued and delivered to said Mc-Kune the policy sued on herein.
On November 8, 1912, the said McKune was in the employ of the Oregon Short Line Railway Company as an “extra” freight brakeman, and continued in. such employment until his death on February 24, 1913. As such employee he performed intermittent and irregular service as required by said railroad company, and his compensation therefor was based upon mileage made and “overtime.” The earnings of said McKune were as follows:
During November, 1912....................$65.12
December, 1912.................... 82.02
January, 1913..................... 51.47
February, 1913.................... 87.99
It was the custom of said railroad company to pay its employees on or shortly after the 15th of each month the wages earned during the previous month, after deducting therefrom the amount of any “pay order” drawn against such wages by the employee. The defendant company, pursuant to its regular custom and immediately upon the receipt of said pay order, sent the same to the O. S. L. Railway Company, and on or about December 20, 1912, billed the McKune account to the railroad company for collection of the first
The first instalment or premium in the sum of $15 was deducted by the paymaster of the railroad company pursuant to said pay order of McKune. Said exhibit together with a remittance of $15 to cover the deduction made from Mc-Kune’s wages for December was forwarded by the railroad company to the San Francisco office of the defendant and received there on January 20, 1913. Thereafter the defendant company included the name of McKune on the paymaster’s return list for the month of January, 1913. Said list was made up at the San Francisco office of the defendant and sent to the railroad company two or three days later. A copy of the particular sheet of the January billing on which the name of McKune appeared is attached to and made a part of the stipulation of facts. A penciled memorandum appears on said sheet opposite the name of McKune, as follows: “Not enough time in.” On November 20, 1912, McKune executed in favor of one Land a pay order in the sum of $50 at Glenns Ferry for a watch purchased from Land, and the pay order provided for the deduction of $20 from the November, 1912, wages of McKune, $20 from the December, 1912, wages, and $10 from the January, 1913, wages. Said order was executed in duplicate and one copy thereof transmitted to Stevenson, superintendent of the Idaho division of said railroad company, and by him transmitted to the paymaster of the O. S. L. Railroad Company at Salt Lake. McKune resided at the railroad company’s hotel and gave further additional pay orders, payable out of his January, 1913, wages, for the sum of $50, and he was also liable for a hospital fee in the sum
1 hotel pay order..........................$30.00
1 watch pay order......................... 10.00
1 hospital fee..............................50
Balance paid McKune................... 10.97
Total earned.....................■.......$51.47
In making payment of the said sum of $10.97, to McKune, the usual form of check of the railroad company was employed and contained no statement' or information as to the amount earned by said McKune nor as to what pay orders had been honored. The defendant had no knowledge that the second instalment of premium had not been deducted from the January wages of McKune until the receipt of exhibit “E” on February 20, 1913. There had been stamped the word “lapsed” on said exhibit “E” opposite the name of the insured and his account was marked as “lapsed” on the records of the defendant company. On the same date, to wit, February 20, the defendant mailed to McKune at Shoshone, Idaho, a certain notice, a copy of which is attached to the stipulation of facts and made a part thereof. Said “lapse” notice was not received by the insured during his lifetime, but was received by the plaintiff, Rose M^une, after her son’s death.
McKune died on the 24th of February from injuries received on that day by reason of being caught between cars and crushed while making a coupling. His death was caused solely by injuries effected through accidental means and was occasioned in a manner covered by the terms of the policy. Rose McKune, as required by the terms of said- policy, gave notice and filed proof of the death of McKune. The death notice was received by the defendant company at its San Francisco office March 3, 1913, and this was the first notice or knowledge the defendant company had of the injury and death of McKune. Deceased’s name was included by the defendant company on its paymaster’s return list for the
Said $30 upon its receipt at the San Francisco office of the defendant was placed in the “Suspense Account” and the claim was then taken up with the main office of the defendant at Chicago, Illinois, and on April 29, 1913, the defendant’s check for $30 was mailed from t]ie San Francisco office of the defendant to the plaintiff and was received by h.-e. She declined to accept the $30, and returned the same to the defendant company. The defendant company is ready and willing to return said $30 to whomsoever may be entitled to it. In all of its actions, in connection with the policy of said McKune, the defendant company has pursued the same course it has always pursued under similar circumstances in connection with similar policies held with it by other employees of the Oregon Short Line Railway Company.
It is also stipulated that sometimes wages earned by “extra” freight brakemen, such as ¡McKune, whose duties were similar to those of McKune, earned in the last day or two of a month, would be included in the wages of the employee the next succeeding month. It is further stipulated that in this particular ease no wages earned by McKune in January were carried over to February, and no wages earned in December were carried over to January.
At the end of each run the conductor in charge of the train on which McKune was working would make up a slip showing the amount earned on the run, and this slip was in every instance signed by McKune and forwarded by the conductor
From the foregoing facts the trial court made its finding of facts, conclusions of law and entered judgment in favor of the plaintiff for $1,000.
The main contention of the appellant is that the finding of facts is not sustained by the evidence, and for that reason the judgment is not based upon the agreed facts but upon the facts as found by the court, and counsel proceed in their printed brief to criticise the findings made by the court and contend that certain of such findings are not supported by the evidence.
It must be conceded that some of the findings made by the court were not necessary under the facts of the case, and it was not necessary for the court to make any findings of its own, as it might have adopted the facts as stipulated as the finding of the court. The reason why finding of facts is not necessary in cases of this kind is because the stipulation of facts takes the place of the court’s findings, and if on the stipulated facts the court has made findings that were not necessary and not supported by the evidence, that will not be permitted to vitiate the judgment. The judgment must be tested by the agreed statement of facts and not by findings of fact made by the court in such a case. The stipulated facts are before this court, and if the law applicable to such facts warranted the judgment entered by the trial court, this court ought not, and will not, reverse that judgment simply because the court has found some things as facts that' were not stipulated.
It was said in McMenomy v. White, 115 Cal. 339, 47 Pac. 109, as follows: “The objections to certain findings upon the ground that they were not justified by the evidence cannot be sustained. As the case was submitted upon an agreed statement of the facts, no findings were necessary, the only question being as to what was the law applicable to those facts.-”
In the ease before us the question is: What is the law ap
It is therefore not necessary to send the case back to the trial court to change in any manner its finding of facts. As bearing upon some of the questions involved in this case, see Continental Casualty Co. v. Jennings, 45 Tex. Civ. 14, 99 S. W. 423; Loftis v. Pacific Mutual Life Ins. Co., 38 Utah, 532, 114 Pac. 134.
Finding no reversible error in the record, the judgment must be affirmed, and it is so ordered, with costs in favor of the respondent.
Rehearing
ON REHEARING.
A rehearing was granted in this cause and the principal point urged in the argument on the rehearing is that the insurance policy issued by appellant to respondent had lapsed before the death of the insured for failure to pay an instalment of the premium.
It appears from the stipulation of facts that the policy was issued as of November 8, 1912, upon an application of the same date. In the application the insured agreed to pay a yearly premium of $60 in four instalments of $15 each. The following language is used in the application:
“I agree to pay therefor $60.00 in 4 instalments of $15.00 each. If paymaster’s order is given to provide for the payment of these instalments, I agree to pay them as therein provided, and do hereby make such order a part of my contract with the Company.....I further agree that if any payment be not made by 12 o’clock noon, standard time, of the day when due, as above specified, all my rights under said policy and the rights of the beneficiary thereunder shall then and thereby become void, and that my policy can be reinstated only at the option of the Company as provided in the policy and that no claim for loss arising between the time of such forfeiture and reinstatement shall be good against the Company. ’ ’
The insured also signed a pay order authorizing his employer, the Oregon Short Line Railroad Company, to deduct his premium in four instalments of $15 each from his wages
“I understand and agree as to the duration of my insurance; .... (2) that if premium is payable in four instalments the payment of the first, second, third and fourth instalments shall continue my policy in force for respective periods of two, two, three and five months, .... all such periods to be computed successively from the date of the policy; (3) that the failure to pay any instalment of premium, from whatsoever cause it may arise, shall terminate my said policy at the expiration of the specified period without any notice; (4) that the paymaster is my agent and his action entirely at my risk; (5) that should default be made in the payment of any instalment and the defaulted instalment afterward be paid, then such payment shall reinstate my policy only from the date of acceptance of the overdue premium as provided in the policy.”
The insurance policy contains the following provisions:
“The Company shall not be liable for any loss occurring while the Assured shall be in default in the payment of any premium. If this policy shall lapse at any time by reason •of the failure of the Assured to pay premium as agreed the subsequent acceptance of the overdue premium by the Company .... shall reinstate the policy as to accidental insurance to cover disability or death resulting from accidental injury thereafter sustained
The pay order gave the insurance company option to collect any instalment, payment of which had been defaulted for any reason whatever, from wages for any month thereafter succeeding, and further provided: “should default be made in the payment of any instalment and the defaulted instalment afterward be paid then such payment shall rein
The insurance company sent the railroad company a notice authorizing the deduction of the first instalment from the insured’s wages for December, 1912. The December wages were payable about the middle of January and the instalment was received by the insurance company on January 20, 1913. The instalment from the January wages was not paid. About February 20th the insurance company learned that the deduction from the January wages had not been made, and sent the insured a notice, marked exhibit “G,” reading as follows:
“This is to inform you that we have been unable to collect the 2nd instalment on order No. 2206520 given by you on paymaster of the Oregon Short Line Railroad Co.....to pay the premium on your insurance. This instalment of $15.00 should be sent to this company immediately. Otherwise you will be without insurance until the overdue premium is received in the usual way from your paymaster. No man can afford to he without insurance. ‘It is better to be safe than to be sorry.’ ”
The insurance company in making up the February paymaster’s list, included the name of the insured in order that the instalment from the January wages might be collected, and sent this list to the railroad company about February 20th. On February 24th, the "insured was killed and the insurance company learned of this fact on March 3d. It never recalled the demand made on the railroad company for payment, and received payment from the railroad company out of wages due the insured on March 20th. It kept this money until April 29th, and then tendered it back and attempted to declare a forfeiture of the policy.
The contention of the appellant is that the insurance policy was forfeited at the time of the insured’s death by reason of nonpayment of an instalment from the January wages.
It occurs to us that the first question is: How long did the payment from the December wages, received on January 20, 1912, continue the policy in force?
It may thus be reasonably contended in this case, in accordance with the language of the pay order, that the payment made on January 20th continued the policy in force for two months from its date. The use of the language to the effect-that all periods are to be computed successively from the date of the policy furnishes some ground for an argument to the contrary, but this argument is met by the fact above pointed out that the first payment was waived and the payment made on January 20th is to be considered as similar to the second payment in the ordinary case.
If the construction of an insurance policy, as applied to the facts of the case, is a matter of doubt, then we are inclined to think that a construction is to be favored which prevents a forfeiture rather than one which favors a forfeiture. This is a reason for favoring the construction above outlined. There may be other provisions in the pay order and policy which favor a different construction, but in such cases, we hold that those provisions should be given effect which prevent a forfeiture, rather than those which favor one.
The construction of the contract which we have adopted disposes of the case, but we think it well to advert to the question of waiver which was also mentioned in the argument.
The respondent contends that even if the insured was in default at the time of his death, the insurance company waived its right to insist upon a forfeiture of the policy by its conduct in first demanding payment of the past-due premium; second, failing to recall that demand, even after learning of the insured’s death; and third, keeping the money for over thirty days after receiving it. It is, of course, the settled law that an insurance company may waive a forfeiture and that, a forfeiture being not favored, a waiver will be inferred whenever it is a reasonable inference from the facts. The mere provisions of the policy do not of themselves work a forfeiture. The question is whether the company so conducted itself that it is able to insist upon the forfeiture provisions of the policy.
Before referring to the merits of this question -of waiver, a question of pleading must be disposed of. The appellant contends that since the plaintiff does not plead a waiver in his complaint, the question of waiver cannot be considered. Ordinarily evidence of a waiver is not admissible unless waiver is pleaded. This, of course, is true only where the party relying upon the waiver had an opportunity to raise it by proper pleadings. It is not true if waiver is properly relied upon by a plaintiff as rebuttal matter to meet a defense raised by the defendant, because in this state no pleading by way of replication is necessary. In this case the point of waiver is raised in rebuttal to meet the defense of forfeiture, attempted to be raised by the defendant. The facts upon which the waiver is based are all contained in the stipulation without any objection on the ground of insufficiency of the pleading. Under these facts, we think that it
Beturning to a consideration of the question of waiver on the merits, we call attention to the case of Loftis v. Pacific Mutual Life Ins. Co., 38 Utah, 532, 114 Pac. 134, in which the supreme court of Utah held that the right to insist upon a forfeiture was waived in a case very similar to the present one, so far as the provisions of the policy and the conduct of the insurance company are concerned. Even if it should be held that the insured was in default at the time of his death, and that the company therefore had a right to insist upon a forfeiture, we think that that right was waived by the company in this ease by its conduct, as above outlined. The notice sent to him is to be reasonably construed as a demand for payment rather than a notice of forfeiture. The failure to recall the demand upon the railroad company after learning of the insured’s death is more consistent with an intention to waive the forfeiture than with an intention to insist upon it. Keeping the money for a length of time, which this court considers to be unreasonable under the circumstances, before returning it, is also inconsistent with an intention to declare a forfeiture.
We have reached the conclusion that the questions involved in the petition for rehearing and presented to the court upon the reargument were correctly decided in the original opinion in this case, which is accordingly adhered to.
