Northern Life Ins. Co. v. Walker

• Citation: 123 Wash. 203,212 P. 277
• Decision Date: 19 January 1923
• Docket Number: 17484.
• Parties: NORTHERN LIFE INS. CO. v. WALKER.
• Court: Washington Supreme Court

212 P. 277

123 Wash. 203

NORTHERN LIFE INS. CO. v. WALKER.

No. 17484.

Supreme Court of Washington

January 19, 1923

Department 1.

Appeal from Superior Court, King County; W. P. Brown, Judge.

Action by the Northern Life Insurance Company against Ada L. Walker individually and as executrix of the last will and testament of William Henry Harmon, deceased. Judgment for plaintiff and defendant appeals. Reversed and remanded, with directions.

C. N Dickison and William L. Bar, both of Seattle, for appellant.

Preston, Thorgrimson & Turner, of Seattle, for respondent.

PARKER J.

As originally commenced in the superior court for King county by the plaintiff insurance company, this was a suit in equity wherein the plaintiff sought a decree of that court canceling a policy issued by the company insuring the life of William Henry Harmon, who had died by suicide, as it is claimed by the company, after the issuance of the policy and before the commencement of the suit. We think it will appear as we proceed that the issues were so developed by the pleadings of the respective parties that the controversy became in legal effect a simple action at law, wherein the defendant sought recovery upon the policy as the beneficiary thereunder.

The allegations and prayer of the company's complaint, so far as necessary to be here noticed, may be summarized as follows: On September 6, 1920, Harmon made application to the company in writing upon a form furnished by it for a policy insuring his life in the sum of $5,000. The application contained, among other things, the following:

'I hereby declare and warrant that all statements and answers in this application are full and correct, and accept and agree for any person claiming under any insurance issued on or by reason of this application as follows: That if the applicant shall engage in the service of any army or navy in time of war (without a written permit from the company) this insurance shall be void except for the amount of the legal reserve on the policy, and that, during one year from date, any insurance issued hereon shall be void in the event of suicide by the insured while sane or insane.'

On September 27, 1920, a policy was issued by the company accordingly, to which the application was attached and made a part thereof, containing the following further provision:

'This policy shall be incontestable after one year from date of policy, except for the nonpayment of premium or service in army or navy in time of war.'

On December 30, 1920, Harmon committed suicide. The policy by its terms was made payable upon his death to his 'executors, administrators or assigns.' On December 31, 1920, the defendant was duly appointed executrix of the last will and testament of Harmon by the superior court for King county, and she thereupon duly qualified as such executrix. She claims recovery upon the policy, not only as executrix, but also in her own personal right as a beneficiary under the policy by virtue of a purported assignment made by Harmon to her before his death. On March 29, 1921, the defendant presented to the company proof of the death of Harmon, claiming to be entitled to payment in full of the amount of the policy, both in her own personal right and as executrix. On July 21, 1921, the company filed its complaint in the superior court for King county, praying for a decree 'adjudicating that by reason of the suicide of the insured during one year from its date said policy became void, and that the plaintiff is not indebted to the defendant either in her individual right or as such executrix in any amount whatsoever.'

On August 3, 1921, the defendant demurred to the plaintiff's complaint upon the ground that the same does not state facts constituting a cause of action. On October 1, 1921, this demurrer was by the court overruled. On October 19, 1921, the defendant filed her answer, which was also in substance a cross-complaint, wherein she denied that Harmon's death was the result of suicide, denied that the plaintiff was without adequate remedy in law, and alleged affirmatively facts plainly sufficient to entitle her to recovery as beneficiary under the policy, concluding with a prayer accordingly for a money judgment against the defendant upon the policy. On November 21, 1921, without in any manner challenging the defendant's right to seek recovery upon the policy in this action, the plaintiff replied thereto with appropriate denials, putting in issue the affirmative allegations of the answer upon which the defendant sought recovery. On December 9, 1921, the defendant filed in the cause her demand for a jury trial of the issues made as above noticed. On February 23, 1922, upon motion of counsel for the plaintiff, the defendant's demand for a jury trial was denied by the court, and an order entered accordingly. On March 15, 1922, the cause came on for trial, at the beginning of which, as shown by a short statement of facts in the record, the defendant again demanded a jury trial. This demand was then again denied by the court, and the defendant forced to trial before the court without a jury as though the cause were triable only as of equitable cognizance, to which the defendant duly excepted. The trial resulted in a final decree being entered by the court on April 22, 1922, awarding to the plaintiff relief as prayed for in its complaint, to wit, cancellation of the policy, and decreeing that the plaintiff is not indebted to the defendant in any sum upon the policy. From this disposition of the cause by the superior court the defendant has appealed to this court.

Respondent, insurance company, moves that the appeal be dismissed for want of sufficient notice thereof. The notice, in so far as we need here quote its language, reads as follows:

'Please take notice that the defendant above named hereby appeals to the Supreme Court of the state of Washington from the whole of the order and decree which adjudges and decrees, * * * made and entered in this action, by said court, on the 22d day of April, 1922, a copy of which order is hereto annexed. * * *'

A copy of the final decree is attached to the notice. The language of the notice which purports to mention what the decree adjudicates refers to certain recitals therein, and falls short of stating all that the decree finally adjudicates. This it is argued renders the notice ineffectual as an appeal from a final decree. If the language of the notice which refers to what the decree adjudicates stood alone as a specification of what is appealed from, there might be some ground for the argument to rest upon; but the above-quoted language of the notice it seems to us renders all else as only surplusage to which we need pay no attention. It plainly tells us that the whole of the decree is appealed from, referring to the decree by name, by reference to the date of its entry and by a copy thereof attached to the notice. State ex rel. Ashmore v. Hunter, 4 Wash. 637, 30 P. 673; Chaney v. Chaney, 56 Wash. 145, 105 P. 229. We think this notice is sufficient as an appeal from the final decree. We therefore conclude that the motion to dismiss the appeal for want of sufficient notice must be denied.

Respondent moves that the statement of facts be stricken from the record and not considered in the case for any purpose. It is contended that it should be so stricken from the record because not certified to by the trial judge as the law requires. The certificate of the trial judge reads as follows:

'* * * Because the foregoing matters and proceedings occurring in this said cause do not appear of record, I, the undersigned, the judge of the superior court, who tried said action, have, on due notice, settled and signed this statement of facts, to the end that the same be made part of the record herein, this 5th day of July, 1922.

'I certify that the above-given statement contains all the material facts, matters, and proceedings heretofore occurring in the cause, and not already a part of the record therein, which are necessary to a determination of the points involved, but does not contain any evidence taken at the trial.'

We have italicized certain words of the certificate to be particularly noticed, because, as will presently appear, they are in substance as prescribed by our statute as being sufficient as one form of certifying a bill of exceptions or statement of facts. The statement of facts is very short. It could as well be called a bill of exceptions. Aside from some brief comment by counsel and the court, it simply shows that upon the calling of the case for trial, and before any evidence had been offered, counsel for appellant renewed her demand for a jury trial; that this demand was denied by the court; that appellant duly excepted thereto and was compelled to proceed to trial before the court without a jury. Manifestly the statement was prepared and caused to be certified for the sole purpose of preserving for review appellant's claimed error of the trial court in denying her a jury trial. Now it may be that the previous record made of appellant's demand for a jury trial and the entry of the court's order denying that demand was sufficient to preserve for review here her claim of error in that behalf, so as to render it unnecessary for her to renew her demand for a jury trial at the commencement of the trial and have such renewed demand and the denial thereof made of record by bill of exceptions or statement of facts. However, if appellant's counsel did not desire to rest upon the first demand and the denial thereof already made of record, and take the chances of being adjudged as waiving a jury trial by proceeding to trial by the court alone, without further demand or protest at the commencement of the trial, plainly appellant had the...