Wick v. Western Union Life Ins. Co.

• Decision Date: 13 November 1918
• Docket Number: 14288.
• Parties: WICK v. WESTERN UNION LIFE INS. CO.
• Court: Washington Supreme Court

175 P. 953

104 Wash. 129

WICK v. WESTERN UNION LIFE INS. CO.

No. 14288.

Supreme Court of Washington, En Banc.

November 13, 1918

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

Action by Mary E. Wick against the Western Union Life Insurance Company. Judgment of dismissal, and plaintiff appeals. Affirmed.

R. M Sturdevant, of Dayton, and Kuykendall & McCabe and M. F Gose, all of Pomeroy, for appellant.

Graves Kizer & Graves, of Spokane, for respondent.

MITCHELL J.

This case was tried in the lower court upon the pleadings and stipulated facts. There was judgment for defendant dismissing the action, and plaintiff appeals.

The material facts admitted are substantially as follows: Respondent is a domestic life insurance company with its home office at Spokane. It has been engaged in business for a number of years, has a large and well-established business, being well known in Spokane and throughout the state. One George William Eyre was an unmarried man and taught school at various points making visits during vacations to this mother's home in Dayton, which he claimed as his place of residence. On May 1, 1914, in consideration of $23.70, paid by him, respondent made and delivered to him a policy of life insurance. The policy, among other things, contains a total disability clause as follows:

' Total Disability.--If the insured, before attaining the age of sixty years, shall furnish due proof that he has, before default in the payment of any premium, become wholly disabled by bodily injury or disease and will be permanently, continuously and wholly prevented thereby from pursuing any and all gainful occupations, the company will pay for said insured all premiums which shall become due and payable during the continuance of such disability.

'The premiums so paid shall not become a charge against the insured, and the values in the table of page two hereof shall increase in the same manner as if the premiums were being paid by the insured. The insured shall, upon due date of any premium, if so required by the said company, furnish due proof of the continuance of such disability. If the insured shall fail to furnish such proof, the company's obligation to pay the premiums hereunder shall cease and the insured shall then resume payment of premiums.'

Appellant is the mother of George William Eyre and is named as the beneficiary in the policy. The insured was employed, during the school year of 1914-15, to teach in the public school at Waitsburg, near Dayton. In the latter part of 1914 he became indisposed from a tumor on the brain and was given a vacation from some time in December, 1914, to the latter part of January, 1915, when he returned to work. His health grew worse. He suffered from headaches, attacks of dizziness, and occasionally fainted. Until about March 31, 1915, because of bad health he could not properly discharge his duties as teacher. His health was such as to impair the general efficiency of the school, whereupon he was relieved by the school board. He died on December 31, 1915, as a result of the tumor. After March 31, 1915, he was unable to teach school or follow any vocation, and was, by his disease, permanently, continuously, and wholly prevented from pursuing any gainful occupation within the meaning of the total disability clause of the policy of insurance. While his physical condition so affected his mind that he was incapable of sustained mental effort, he was at no time insane or imbecile, and during the greater part of the time was capable of receiving and understanding communications made to him. He lived with his mother at her home after March 31, 1915. Respondent was not informed of the unfortunate condition of the insured or any reason for nonpayment of premium on the policy until about October 22, 1915, when notice of the disability and a request for advice as to the nature and amount of proof necessary was given by an attorney for the insured. About 30 days before the annual premium became due on May 1, 1915, respondent gave the insured notice thereof, by mail, addressing him at his post office address at Dayton. Again, about May 13, 1915, respondent mailed to the insured a letter calling attention to the nonpayment of the annual premium and cautioning him not to overlook it and that the 30 days of grace allowed by the policy would soon be up, and further stating that the company was ready to extend assistance by permitting semiannual or quarterly premium payments if preferred. Again, on June 3, 1915, respondent wrote as follows:

'Western Union Life Insurance Company.

'Spokane, Washington, June 3, 1915. #13686.

'Mr. Geo. W. Eyre, Dayton, Washington, 5th & J.--Dear Sir: We notice that the grace allowed by the company in the payment of the premium on your policy No. 13686 expired 6/1/15 and we wish to know if this is intentional or otherwise on your part.

'If you are doing so because you are temporarily short of the necessary funds, we wish you to let us know what arrangement you would like to make to defer the payment of part of the premium.

'If you wish, the same can be changed to either semi-annual or quarterly payments, and in fact almost any reasonable arrangement can be made if you will only let us know your wishes in the matter.

'In any case drop us a line stating your intention and oblige,

'Yours very truly,

'J. N. Wright, Secretary.'

This last letter manifestly proceeded out of consideration of the company for the insured, because the provision in the policy for reinstatement after it had lapsed for nonpayment of premium depends upon a written application therefor by the insured. None of the three letters was returned, nor was any answer ever made to either by Eyre or any one in his behalf. Afterwards, and prior to the receipt of the notice of disability through the attorney for the insured in October, 1915, respondent canceled the policy upon its records. The premium falling due on May 1, 1915, was never paid, nor was there any application for reinstatement.

The case involves a construction of the contract of insurance. The respondent contends the disability clause of the contract must be held to mean that, if the insured under an existing policy, demand that the insurer pay subsequently accruing premiums, accompanying such demand with due proof of total disability, it must pay such premiums so long as the disability...