109 Wash. 338 | Wash. | 1920
This action was brought for the purpose of recovering upon a policy of life insurance. After the issues were framed, the cause proceeded to trial before the court and a jury. At the conclusion of the plaintiffs’ evidence, the defendant interposed a motion for nonsuit, which was sustained, and a judgment entered dismissing the action. From this judgment, the plaintiffs appeal.
By a policy dated March 26, 1917, the American Central Life Insurance Company, the respondent, issued a policy of life insurance to Clarence E. Sandstedt. The beneficiary named in the policy was the insured’s mother, Hanna Sandstedt, one of the appellants. The policy contained a provision that, if death of the insured should occur while engaged in the military service in time of war, or in consequence of such service, the company would not be liable under the policy unless its permission to engage in such service had been obtained. The exact language of the policy is this:
“Death while engaged in military or naval service in time of War or in consequence of such service shall render the company liable for only the reserve under this policy, unless the company’s permission to engage in such service shall have been obtained and such extra premium or premiums as the company may require shall have been paid.”
The policy also contained a provision that no condition or privilege of the policy could be waived or
“No condition, provision or privilege of this policy can be waived or modified in any case except by endorsement hereon signed by the president, the first vice-president, the actuary or the secretary. No agent has power in behalf of the company to make or modify this or any other policy, to extend the time for paying the premium, to waive any forfeiture, to grant any permit or to bind the company by making any promise or making or receiving any representation or information. ’ ’
On August 17, 1917, the insured enlisted in the military service of the United States. During the latter part of December, 1917, a letter from the company was delivered to Mrs. Sandstedt at Pasco, whether addressed to her or to the insured does not appear, saying in effect that, if the insured had entered the military service, it would be necessary to take the letter to the local agent of the company and take up with him the matter of securing the company’s consent to the policy continuing in force. Immediately after receiving this letter, Mrs. Sandstedt took it to the local agent at Pasco,, who told her that he must also have the policy. Immediately thereafter- the policy was delivered to him. The local agent told Mrs. Sandstedt that he would send the policy and the letter back to the company and get its consent, .and send the application to the insured to have him sign it. At that time the insured was on his way to Prance. Subsequently the local agent told Mrs. Sandstedt he had written on the 7th of January following. On the 20th of January, the insured died in Prance of pneumonia while in the
The theory of the appellants’ case is, if we have gathered it correctly, that the company, by writing the letter which Mrs. Sandstedt received, directing that she take up with the local agent the matter of getting the company’s consent for the insured to engage in the military service of the United States, and the agent’s acts in pursuance of such direction, constituted a waiver in the nature of an estoppel on the part of the company of the provisions of the policy relating to the insured engaging in military service in time of war and the manner in which such provision could be waived or modified. The local agent made no indorsement upon the policy and made no attempt to modify it. He undertook, in pursuance of the letter which Mrs. Sandstedt received, to call the matter to the attention of the company and to have the application signed by the insured. Before this could be accomplished, the death occurred. There is nothing in the evidence from which it can reasonably be inferred that the agent assumed to then modify the policy or that Mrs. Sandstedt understood that he was so doing. It is not claimed that the provisions of the policy wonld not be controlling if they had not been modified or waived. The evidence conclusively shows that no modification
The judgment will be affirmed.
Parker, Mackintosh, and Mitchell, JJ., concur.