Basinsky v. National Cas. Co.

• Decision Date: 21 October 1922
• Docket Number: 17061.
• Citation: 209 P. 1077,122 Wash. 1
• Court: Washington Supreme Court
• Parties: BASINSKY v. NATIONAL CASUALTY CO.

209 P. 1077

122 Wash. 1

BASINSKY v. NATIONAL CASUALTY CO.

No. 17061.

Supreme Court of Washington

October 21, 1922

Department 1.

Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge.

Action by Joseph Basinsky against the National Casualty Company. From judgment for plaintiff, defendant appeals. Reversed with instructions to dismiss.

Hadley & Abbott, of Bellingham, for appellant.

Pemberton & Sampley, of Bellingham, for respondent.

BRIDGES J.

Suit on an accident insurance policy. The facts are: The plaintiff was a laborer working in the woods near the city of Bellingham for Wood- Knight Logging Company. On the evening of October 25, 1920, one Mr. Handy, soliciting agent for the defendant, visited the plaintiff at the logging camp, and requested him to take out some accident insurance. After some conversation on the matter, and during the same evening, the plaintiff made written application for the insurance. At the same time he gave to the agent an order on his employer for the necessary premium. Early the next morning, to wit, the 26th, this order was accepted, and the money paid to the agent. Thereafter the written application and the necessary amount of money were forwarded or given by the agent to a repesentative of the casualty company living in the city of Bellingham, and who had authority to accept applications for insurance and to write policies. On the 27th of October the application was accepted, and the policy written and subsequently delivered to the plaintiff. After the making of the application for the insurance, but before it was accepted by the company, the plaintiff was injured. The casualty company denied liability, and this suit resulted. The case was tried to a jury, and upon a verdict in favor of the plaintiff a judgment was entered, from which the casualty company has appealed.

During the trial of the case, the court, over the objections of the appellant, permitted the respondents to testify that when the application for the insurance was being made out, or when it was delivered to the insurance agent, that agent told the respondent that he 'was protected from the time he [the agent] receipted for the money,' and that the insurance went into effect at that time.

Considering the important and difficult questions involved, we regret that the respondent has not been able to favor us with a written brief, although his counsel orally argued the case at the time it was called for hearing.

Two principal questions are involved: First, does the written evidence, to wit, the application for the insurance, the receipt by the agent of the necessary premiums and the policy of insurance, show that the contract went into effect before the respondent was injured? and, second, if the first question should be answered in the negative, then was it competent for the respondent to testify that the agent told him, at the time the application was made, that he was insured and protected from that time?

We will discuss these questions in the order named. The application was on a printed form furnished by the casualty company, and was signed by the respondent. It is dated October 26th, but the undisputed testimony shows that it was actually made out signed, and delivered on the evening of October 25th. It contained the following clause:

'I agree that this application shall not be binding upon the company until accepted either by the secretary at the home office or by an agent duly authorized to issue policies.'

When the premium money was paid to the agent, he made and delivered to the respondent a receipt on a printed form furnished by the casualty company. It reads as follows:

'Received from Joseph Basinsky an application fee of $5 for a policy in the National Casualty Co., and the sum of $7.80 being payment of premium in advance to carry policy to February 1, 1921.

'[Signed] F. W. Handy.

'It is expressly agreed, that should the said company decline or fail to issue a policy hereon in twenty days from the date hereof, the amount of payment actually made shall be returned to said applicant by the person signing this receipt. Applicants will please notify the company at Detroit, Mich., should the policy not be received in ten days from the date hereof.'

The policy is dated at noon, October 27th, and recites that it insures the respondent 'from twelve o'clock, noon standard time, of the day this contract is dated, until twelve o'clock, noon, standard time, of the first day of February, 1921.'

The application for the insurance and its acceptance would, under ordinary circumstances, constitute the contract. It will be observed that the application specifically provides that there is no contract made until it (the application) has been accepted by the secretary at the home office, or by an agent duly authorized to issue policies. The testimony shows that the application was not accepted until after the respondent was injured, and the policy itself expressly states that it shall go into effect at a certain time, which was the day following the respondent's injury. From these papers it is plain that at the time the respondent was injured there was no contract between the parties. But respondent's counsel orally argued that when the application was accepted a contract was made which related back to the time of making the application. If the proposition made by respondent had been unconditionally accepted, we could see much force in the argument, although there seems to be authority to the contrary. But here the only acceptance was that implied by the writing of the policy.

That instrument expressly denies that the term of insurance shall begin at the date of the application, because it provides that it shall begin at noon of the 27th of October, which was two days after the making...