Mckune v. Continental Casualty Co., a Corp.
| Decision Date | 25 September 1915 |
| Citation | 28 Idaho 22,154 P. 990 |
| Parties | ROSE MCKUNE, Respondent, v. CONTINENTAL CASUALTY CO., a Corporation, Appellant |
| Court | Idaho Supreme Court |
ACCIDENTAL INSURANCE-AGREED STATEMENT OF FACTS-FINDINGS BY THE COURT-LAW APPLICABLE TO STIPULATED FACTS.
1. Where a case is submitted to the trial court upon an agreed stipulation of facts and the trial court makes findings, a part of which are not fully supported by the stipulated facts, the case will not be reversed and sent back for further findings where the law applicable to the agreed statement of facts warrants and supports the judgment.
[As to waiver of right to have findings of fact made by court, see note in Ann.Cas. 1914D, 797.]
2. Under an agreed statement of facts, no findings by the court are absolutely necessary, the question then being what is the law applicable to such facts. Where the court makes findings of its own in such a case, an objection that they are not justified by the evidence cannot be sustained if the law applicable to the agreed statement of facts supports the judgment, since the judgment must be tested by the agreed statement of facts and not by the finding of facts made by the court.
APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.
Action to recover the amount represented by an accident policy because of the death of the insured. Judgment for the plaintiff. Affirmed.
Judgment affirmed, with costs in favor of the respondent.
Budge & Barnard, for Appellant.
The case having been submitted upon an agreed statement of facts it was unnecessary for the court to make findings. (Gregory v. Gregory, 102 Cal. 50, 36 P. 364; McMenomy v. White, 115 Cal. 339, 47 P. 109.)
There being no proof to support the findings made, the judgment should be reversed. (Idaho Placer Min. Co. v. Green, 14 Idaho 294, 94 P. 161.)
Considering the stipulated facts as the only proper findings of fact upon which the judgment should have been based, a judgment based upon other findings which ignore the agreed facts must of necessity be erroneous. (Seward v. Rheiner, 2 Kan App. 95, 43 P. 423.)
The insured was not killed until Feb. 24, 1913. The policy certainly was not in force after the expiration of the month of January, and there is no possible theory on which it could have been considered to be continued subsequent to that time. The insured received his wages for the month of January and kept them and necessarily knew (although this is not a material factor) that the premium had not been deducted. The insurance company did not know that the policy had lapsed by reason of failure to pay the second instalment until February 20th, and it at once notified the insured, who was killed before the notice was received. The action of the company in billing the second instalment for deduction from wages from the month of February cannot be distorted into a waiver, because the policy gave it the option to collect defaulted instalments from wages for any subsequent month. (Sewell v. Continental Casualty Co., 92 Miss. 857, 46 So. 714; Hagins v. Aetna Life Ins. Co., 72 S.C. 216, 51 S.E. 683; Bane v. Travelers' Ins. Co., 85 Ky. 677, 4 S.W. 787; Employers' Liability Assur. Corp. v. Rochelle, 13 Tex. Civ. App. 232, 35 S.W. 869; Brown v. Pacific Mutual Life Ins. Co., 109 Mo.App. 137, 82 S.W. 1122; Reed v. Travelers' Ins. Co., 117 Ga. 116, 43 S.E. 433; McMahon v. Travelers' Ins. Co., 77 Iowa 229, 42 N.W. 179; York v. Railway Officials & Employers' Accident Assn., 51 W.Va. 38, 41 S.E. 227; Continental Casualty Co. v. Jasper, 121 Ky. 77, 88 S.W. 1078; Pride v. Continental Casualty Co., 69 Wash. 428, 125 P. 787; Lacy v. Continental Casualty Co., 170 Ill.App. 527; Aetna Life Ins. Co. v. Ricks, 79 Ark. 38, 94 S.W. 923; Crosby v. Vermont Accident Ins. Co., 84 Vt. 510, 80 A. 817; Parker v. Knights Templar & Masons' Life Indemnity Co., 70 Neb. 268, 97 N.W. 281; Bryan v. National Life Assn., 21 R. I. 149, 42 A. 513; Plumer v. Continental Casualty Co., 12 Ga.App. 594, 77 S.E. 917.)
Johnson & Haddock, for Respondent.
"The objection 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 facts no findings were necessary, and the only question being as to what was the law applicable to those facts." (McMenomy v. White, 115 Cal. 339, 47 P. 109.)
"The insurance company should not be allowed to occupy such a legal attitude that it can say in case the assured lives 'You owe this order,' but in case of his death, that 'the insurance has expired by reason of its nonpayment.'" (Bane v. Travelers' Ins. Co., 85 Ky. 677, 4 S.W. 787.)
Insurance policies, if fairly open to construction, must be so construed as not to work a forfeiture. (McMaster v. New York Life Ins. Co., 183 U.S. 25, 22 S.Ct. 10, 46 L.Ed. 64; Stinchcombe v. New York Life Ins. Co., 46 Ore. 316, 80 P. 213.)
"A demand of a premium or assessment on account of which a forfeiture might be claimed or an attempt to collect it is a waiver of the forfeiture, for it is a recognition of the continuance of the contract." (25 Cyc. 871.)
"Where an accident policy is kept in force so as to authorize insurer to demand and receive a past-due instalment of the premium, the policy must be deemed in force for all other purposes so as to bind insurer thereon." (Loftis v. Pacific Mut. Life Ins. Co., 38 Utah 532, 114 P. 134; Continental Casualty Co. v. Jennings, 45 Tex. Civ. 14, 99 S.W. 423; Washburn v. Union Central Life Ins. Co., 143 Ala. 485, 38 So. 1011; Galliher v. State Mutual Life Ins. Co., 150 Ala. 543, 124 Am. St. 83, 43 So. 833; 3 Cooley's Brief on Insurance, 2724; Union Central Life Ins. Co. v. Duvall, 20 Ky. Law Rep. 441, 46 S.W. 518; Walls v. Home Ins. Co., 114 Ky. 611, 102 Am. St. 298, 71 S.W. 650; Moreland v. Union Central Life Ins. Co., 104 Ky. 129, 46 S.W. 516; National Life Ins. Co. v. Reppond (Tex. Civ.), 81 S.W. 1012; Shawnee Mutual Fire Ins. Co. v. Cannedy, 36 Okla. 733, 129 P. 865, 44 L. R. A., N. S., 376; Williams v. Empire Mut. etc. Ins. Co., 8 Ga.App. 303, 68 S.E. 1082; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261, 83 S.W. 615, 84 S.W. 1160, 7 Ann. Cas. 913, 69 L. R. A. 264; New England etc. Ins. Co. v. Springgate, 129 Ky. 627, 112 S.W. 681, 113 S.W. 824, 19 L. R. A., N. S., 227.)
SULLIVAN, C. J., Morgan, J., concurs. Budge, J., took no part in the decision of this case.
This is an action to recover on an accident policy issued by the appellant to one Frank J. McKune, 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 assignments of error specify the insufficiency of the evidence to justify the findings and judgment as well as certain alleged errors of law.
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 McKune 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 installment of premium on his said policy from his wages for the month of December, 1912. Said billing was on the form used by the defendant company commonly called a "paymaster's return list," and consisted of several sheets. Said bill was made up in the office of the defendant company and contained the names of the employees of the railroad company who had given pay orders to the defendant company authorizing deductions or premiums from their wages for the month of December, 1912. Copies of said sheets are attached to said stipulated facts and made a part thereof.
The first installment 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 McKune's wages for December was forwarded by the railroad company to the San Francisco office of...
To continue reading
Request your trial
-
Wyllie v. Kent
... ... judgment. (23 Cyc. 868; Council Imp. Co. v. Draper, ... 16 Idaho 541, 102 P. 7; Browder v ... ...
- McKune v. Continental Casualty Co.