Houston v. New York Life Ins. Co., 23225.

• Decision Date: 16 February 1932
• Docket Number: 23225.
• Parties: HOUSTON v. NEW YORK LIFE INS. CO.
• Court: Washington Supreme Court

8 P.2d 434

166 Wash. 611

HOUSTON v. NEW YORK LIFE INS. CO.

No. 23225.

Supreme Court of Washington, En Banc.

February 16, 1932

Appeal from Superior Court, King County; Wm. J. Steinert, Judge.

Action by Laura A. Houston against the New York Life Insurance Company, in which defendant filed a cross-complaint. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wright & Catlett, of Seattle, for appellant.

John L Corrigan, of Seattle, for respondent.

MILLARD J.

This is an action by the beneficiary thereunder to recover upon a reinstated life insurance policy. To the insured, late husband of the plaintiff beneficiary, the defendant company on April 8, 1927, issued its policy of life insurance. Because of nonpayment of the annual premium due July 16 1927, the insurance lapsed. On October 18, 1927, the plaintiff's husband signed an application, reading as follows, for reinstatement of the policy:

'1. Are you now, to the best of your knowledge and belief, in the same condition of health as you when this policy was issued? (If not give details.) Ans. Yes.

'2. Within the past twenty-four months have you have any illnesses or have you consulted or been treated by any physician or physicians? (If so, give full details including nature, date and duration of each illness, the name of each physician, and the dates of consultation or treatment.) Ans. April 1, 1927, one week with grippe. Dr. Ellis, Ketchikan, made one call.

'3. Has any company or Insurer, within the past 24 months, examined you either for, or in anticipation of, an application for life insurance, or for the reinstatement of life insurance, without issuing or reinstating such insurance? (If so, give name of each Company or Insurer.) Ans. No.

'If the evidence of my insurability is satisfactory to the Company and it has received all sums the policy requires to be paid for reinstatement, then, and not until then, said policy shall be deemed reinstated. If said policy is not so reinstated, I agree to accept return of all sums paid in connection with this application, without interest.

'I hereby certify that the foregoing answers are full, complete and true, and agree that the Company believing them to be true shall rely and act thereon.'

The defendant company approved the application and reinstated the policy. On November 27, 1928, the insured died of a disease of the heart. Due proof of death was furnished to the company. The company, claiming is had discovered that the insured falsely answered the above-quoted questions in his application for reinstatement of the policy, and that the insured so answered with intent to deceive, refused on February 5, 1929, to pay the insurance. The company tendered to the plaintiff the amount of the premiums paid upon the policy from the time it was reinstated. The tender was refused by the plaintiff, who thereupon commenced an action to recover upon the policy. Trial of the cause to the court and a jury resulted in verdict in favor of the plaintiff. The defendant's motion for judgment notwithstanding the verdict was granted. On plaintiff's appeal, the judgment of dismissal was reversed and the cause remanded with direction to the superior court to pass on defendant's alternative motion for a new trial. Houston v. New York Life Insurance Co., 159 Wash. 162, 292 P. 445. The motion for a new trial was denied and judgment entered on the verdict in favor of the plaintiff. The defendant has appealed.

Contending that the court was without authority to settle and certify a second statement of facts, respondent has interposed a motion to strike the statement of facts.

The present appellant, following the entry of the judgment after denial of its motion for a new trial, served and filed a new statement of facts. It was, except for the incorporation therein of exceptions taken by the present appellant to certain instructions given to the jury, an exact copy of the statement of facts prepared by the respondent on her appeal from the judgment of dismissal. Houston v. New York Life Ins. Co., 159 Wash. 162, 292 P. 445.

This was not violative of the rule (section 388, Rem. Comp. Stat.) that only one statement of facts can be 'settled or certified after the rendition of the final judgment in the cause.' The former appeal was prosecuted by the present respondent from the final judgment of dismissal. That judgment was reversed. The present appeal is from another and final judgment entered on the verdict in favor of the respondent. Though the facts are the same, there are two different and distinct judgments; hence it was the right of the appellant to propose a statement of facts (though literally a copy of the statement of facts in the former appeal) and incorporate therein all of the exceptions of which it now seeks to avail itself. Being a respondent on the prior appeal, the now appellant could not then urge the errors of which it now complains on this appeal. There was not any necessity for the present appellant to then by proposed amendments have included in the statement of facts the exceptions to the instructions.

'If, upon an appeal by one party, upon the judgment roll, the judgment is reversed and judgment ordered entered upon the findings in his favor, the other party may, by an appeal upon a proper record, present for consideration exceptions taken by him on the trial of the action.' Lambert v. Bates, 148 Cal. 146, 82 P. 767, 768.

'As it is only when, upon the second appeal, the record presents the same matters, either of fact or of law, upon which the determination of this court was rendered at the former appeal, that the determination is held to be final, it follows that if there is presented upon the second appeal a different state of facts, or any errors that were committed by the trial court which were not presented in the former record, this court is at liberty to consider them as fully as though presented upon a first appeal. In case, therefore, the respondent upon the first appeal shall afterwards appeal from a judgment rendered against him upon a second trial, in which the same errors were committed as were committed at the first trial, he will not be precluded from having them considered by this court, even though the effect thereof should be a reversal of the second judgment, and indirectly a determination by this court that the first judgment of the court below should have been in his favor.

'Section 650, Code Civil Proc., provides that a party who desires to have the exceptions taken at a trial settled in a bill may, within 10 days after receiving notice of the judgment, prepare a draft thereof, and have the same settled by the judge. A judgment is the final determination of the rights of the parties to an action or proceeding, and, as there can be only one final judgment in an action, if for any reason a judgment that has been entered is vacated, and another judgment entered in lieu thereof, this last judgment becomes the only one in the case, and the notice of its entry is the point of time from which the right to have a bill of exceptions settled begins to run. For this purpose there is no distinction between a judgment rendered by the trial court upon its original determination of the cause, and a judgment which it enters in obedience to the direction of this court after an appeal; and a judgment entered by it in obedience to such direction has no greater sanctity upon an appeal that if it had been entered under the direction of this court to try the cause anew, and render a judgment in accordance with the opinion of this court. If, in either case, any errors have supervened prior to the entry of the judgment, and which conduced thereto, that were not presented in the record upon the former appeal, this court is not precluded from their examination. If the findings of fact upon which the judgment rests are based upon evidence that was improperly admitted, the party against whom the judgment was rendered is entitled to have those errors corrected. The statute permits an appeal from a judgment by any party who is aggrieved thereby, and it also permits him to have any exceptions taken at the trial which he desires incorporated in the bill of exceptions settled by the judge. It also makes all bills of exceptions taken and filed a part of the judgment roll (Code Civil Proc. § 670), and requires the appellant to bring to this court, upon an appeal from the judgment, a copy of the judgment roll (Code Civil Proc. § 950). If, upon such appeal, there are found in the record matters which were not determined upon the former appeal, he has the right to be heard thereon. * * * The present case * * * presents a bill of exceptions containing matters directly affecting the findings of fact upon which the judgment rests; and as those matters were not Before the court upon the former appeal the 'law of the case' has no application.' Klauber et al. v. San Diego Street Car Co., 98 Cal. 105, 32 P. 876, 877.

Appellant first contends that this is an equitable cause triable to the court without a jury; hence the court erred in denying appellant's motion to discharge the jury.

Counsel for appellant argue that the allegations of the complaint as to the issuing, lapsing, and reinstating the policy, and the allegations of payment of premiums, death of the insured, etc., having been admitted by the answer, there was no issue of fact to be tried by a jury, and section 314, Rem. Comp. Stat., is not applicable; that appellant's cross-complaint for the rescission of the reinstatement of the policy and its cancellation was an independent equitable action which, under section 315, Rem. Comp. Stat., should have been tried to the court without a jury.

The pertinent statute reads as follows:

'An issue of fact, in an action for...