24 Haw. 366 | Haw. | 1918
OPINION OF THE COURT BY
The plaintiff, appellant, is the administratrix of the estate, and Avas the wife, of Alexander McLain, deceased. The defendant, appellee, is a corporation organized under the laws of the State of California, represented in this Territory by the Henry Waterhouse Trust Company, Limited, a Hawaiian corporation, its agent. The plaintiff on November 24, 1915, instituted an action in assumpsit against the defendant upon a life insurance policy issued by defendant to said deceased on the 15th day of Maj’, 1903. The policy is attached to and made a part of the complaint. Plaintiff’s first complaint Avas demurred to by the defendant, the demurrer being sustained by the court beloAV and again sustained by this court. See Silverhorn v. Insurance Co., 23 Haw. 160. The plaintiff thereafter filed an amended complaint to Avhich defendant interposed a demurrer which Avas by the court sustained. A second amended complaint Avas filed and a demurrer thereto Avas also sustained. 'The plaintiff comes to this court on a bill of exceptions, the single exception being to the ruling of the court sustaining defendant’s demurrer to plaintiff’s second amended complaint.
It is alleged in the amended complaint noAV before us that in the month of May or June, 1907, the said Alexander McLain Avas employed as a fireman on the steamer Raineer then lying at the port of San Francisco; that the said McLain disappeared and that it was reported that he had met accidental death by drowning in San Francisco bay; that coincidental with his disappearance a dead body resembling McLain in stature and physique, but owing to the action of the sea water and the exposure of the body
The amended complaint contains further allegations which in substance aver that by reason of the agreement above set forth the defendant is estopped from relying on the provision in said policy to the effect that action should be commenced within one year from the month of May, 1907, being the date of the alleged death of Alexander McLain, and further that defendant has waived the terms of said policy and its rights at law in that regard. Plaintiff further avers that the defendant waived the payment of premiums to accrue subsequent to the date of said agreement and plaintiff prays for judgment against the defendant for the sum of one thousand dollars, with interest, etc.
A second cause of action is contained in the complaint which appears to be based upon the theory that by the terms and conditions of the policy the same had a cash surrender value and that plaintiff was entitled to recover the amount
The second cause of action was disallowed by this court in Silverhorn v. Insurance Co., supra, which opinion we approve, and the third cause of action we consider equally without merit and we hold that the demurrer to both the second and third causes of action, as contained in plaintiff’s complaint, was properly sustained. We are then left to deal solely with the first cause of action.
By reference to the record it will be readily seen that the case is now before us on allegations differing materially from those contained in the original complaint which were passed upon by this court in Silverhorn v. Insurance Co., supra. The allegations of the amended complaint must for the purpose of this opinion be taken as confessed. It is urged by the plaintiff that the defendant having in November, 1907, induced plaintiff to forego her then rights under the policy and to wait for a period of seven years under defendant’s promise that if during that period McLain was not heard of the insurance would be paid, and the further representation of the defendant, made at that time, that during said period defendant would not require the payment of any premiums which might become :due under the policy, constituted a waiver of the right of the defendant to require that the action should be commenced within one year of the date of the death of the insured and that plaintiff is estopped from pleading said clause in the policy as a bar to the action. And for the same reason plaintiff contends that the defendant has waived its right to require the payment of the premiums and is estopped from claiming a forfeiture of the policy by reason of the nonpayment thereof under the clause in the policy which provides that the policy shall lapse and be void if any premium is not
It is vigorously urged by the defendant that the absence of any allegation in the complaint that the waivers or modifications had the assent of either the president or vice-president in combination with the assent of the secretary or assistant secretary, and the absence of a further allegation that such waivers or modifications were in writing, renders the complaint fatally defective. The complaint does not specify by what officers or other representatives of the company the waivers or modifications were made nor whether the same were in writing or otherwise. The allegations simply designate the defendant, which of course means the Pacific Mutual Life Insurance Company of California, a- corporation, as the party making the waivers. The principles of the law of waiver and estoppel require consideration here in order to arrive at a proper solution of the questions at issue. A waiver is defined as the failure to insist upon some right, claim or privilege and a foregoing or giving up of some advantage which but for such waiver the party would have enjoyed. A waiver takes place where a man dispenses with the performance of something which he has a right to exact and is a technical doctrine introduced and applied by the courts for the
If it is true that the defendant in this case, as alleged, by representations and promises induced plaintiff to forego her right to bring an action on the policy in suit within one year after the death of McLain and also waived its right to require the payment of premiums and the plaintiff did, pursuant to defendant’s representations and promises, refrain from bringing suit against defendant within the time prescribed in the policy, the plaintiff thereby rendered her quid pro quo and defendant is es-topped from requiring a compliance with those clauses in the policy — the one requiring suit to be brought within one year after the death of the insured and the other providing for a forfeiture of the policy in case the premiums were not paid. Hale v. Union Mutual Fire Ins. Co., 64
While municipal or governmental corporations are held to a strict exercise of their powers it has been held that they may Avaive the terms of their written contracts and be estopped thereby. A county in Illinois, a subscriber to stock of a railway company, agreed to extend the time for completing the road from that originally fixed to a particular date. Before that date the county by its proper officers declared the road completed to its satisfaction, delivered its bonds and received the stock of the company in return therefor. Held, its action constituted a waiver and estoppel which prevented it from raising the objection that the contract was not performed in time. County of Randolph v. Post, 93 U. S. 502. Where contracts were required by a Federal statute to he in writing it has been held that this requirement might be departed from in those very particulars where waitings are most important and still the Federal government would be bound. Where a contract was made for the delivery of a large amount of supplies by a given date, but which were not delivered by that date but long afterwards, it was held that the statute was not infringed by accepting these supplies after the date stipulated for delivery and that a verbal agreement to extend the time of performance was valid. Salomon v. United States, 19 Wall. 17. See also Pixley v. Western Pac. Ry. Co., 91 Am. Dec. 623. In the last case cited the charter of a railroad company provided that “No contract shall be binding on the company unless made in writing.” The plaintiffs were attorneys and were employed by verbal agreement merely to conduct litigation. They did so and then sued for their fees and the company defended on the ground that the contract was not in writing. Commenting upon this case the supreme court of California said“It is probable that the first impulse that rises in every mind
In the case at bar the plaintiff accepted the terms imposed by defendant and complied therewith. The defendant received the consideration and it should not now be permitted to escape liability. If corporate transactions are void because the prescribed form is not pursued it does away with much of the law of implied contracts as it relates to such objects. That corporations are liable upon implied contracts, -even where it is required that they should be expressed, is too well settled to dispute. 2 Kent’s Com. 291; City of Cincinnati v. Cameron, 33 Oh. St. 365.
The final question is whether the complaint is fatally defective because of the absence of an allegation that the waivers were made by the officers and in the manner provided for in the policy. The allegation in the complaint that the waivers were the act of the defendant carries with it the assumption that the same were not only committed by the proper officers or representatives of the company clothed with authority to act but that all necessary steps were taken in order to malte the corporate act legally operative.
The defendant reliés largely upon the decision of the Supreme Court of the United States in Northern Assurance Co. v. Grand View Building Association, 183 U. S. 308, and while that opinion was the expression of a divided court we have no quarrel with the views expressed therein. But it must be borne in mind that while that case had to do with proof, we are dealing with pleadings. The court in that case, in referring to a clause providing against additional insurance, held that such a condition in the policy Avas one which, unless waivedshould have been complied
In the case at bar, the corporation having authority to make the contract in the first instance it follows that it
The exception to the order of the court sustaining defendants demurrer is hereby sustained and the cause is remanded to the court below for further proceedings consistent with this opinion.