59 Wn.2d 748, S. A. WEITMAN, Individually and as Executor, Respondent, HAROLD N. WEITMAN, Individually and as Administrator, Appellant, v. GRANGE INSURANCE ASSOCIATION et al., Appellants and Respondents
[No. 35835. Department One.      Supreme Court      April 12, 1962.]
S. A. WEITMAN, Individually and as Executor, Respondent,
           HAROLD N. WEITMAN, Individually and as Administrator,
           Appellant, v. GRANGE INSURANCE ASSOCIATION et al.,
                         Appellants and Respondents.«*»

[1] ESTOPPEL - PROMISSORY ESTOPPEL - ELEMENTS. The essential elements of promissory estoppel are: (1) A promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise.

[2] SAME - RELIANCE - JUSTIFICATION. In order for a person to be justified in relying upon the conduct or declarations of another to his injury so that the doctrine of promissory estoppel is applicable, it is necessary that the party claiming to have been influenced by such conduct or declarations be destitute of any knowledge of the state of facts and of any available means of ascertaining such knowledge; and where the facts are known to both parties, or both have the same means of ascertaining the facts, there can be no estoppel.

[3] SAME - EVIDENCE - QUESTION OF FACT. In an action on a fire insurance policy where an insured claimed that the insurance company was estopped to assert the expiration of the policy because the company's agent had promised to notify him if the coverage was jeopardized, the trial court properly submitted to the jury the question of the insured's right to rely on the promise notwithstanding that the expiration date of the policy was known to both the insured and the company, where there was evidence from which the jury could have found that the company had an option to return certain unearned premiums and overpayments or extend the existing coverage, since the insured would have had no means of acquiring knowledge of the expiration date until the company made an election under the option.

[4] SAME - EVIDENCE - SUFFICIENCY. In such an action, held that there was sufficient evidence in the record to take the case to the jury on all of the elements of the doctrine of promissory estoppel.

[5] SAME - INSTRUCTIONS - NECESSARY ELEMENTS - MATTERS AFFECTING KNOWLEDGE OF FACTS. In an action on a fire insurance policy where the insured claimed that the insurance company was estopped to assert the expiration of the policy because the company's agent had promised to notify him if the coverage was jeopardized, the trial

* Reported in 370 P. (2d) 587.

[1] See Ann. 48 A. L. R. 1370, 115 A. L. R. 153, 48 A. L. R. (2d) 1071, 49 A. L. R. (2d) 1058; Am. Jur., Estoppel § 53.

Apr. 1962] WEITMAN v. GRANGE INS. ASS'N. 749

court properly refused to give certain requested instructions which did not include acts of the company in regard to credits due the insured and which would affect the termination of the insurance coverage, since such matters were material in determining whether the insured had equal knowledge as to the date of expiration.

[6] INSURANCE - ACTIONS ON POLICIES - EXTENSION OF COVERAGE - QUESTION OF FACT. In an action on a fire insurance policy, the trial court erred in holding as a matter of law that the policy was not in effect at the time of the loss, where, although the policy contained an earlier expiration date, it could be inferred from the evidence, and was therefore a question of fact, that certain overpayments by the insured which had not been returned by the company would extend the coverage beyond the stated expiration date, and it could have been further concluded that additional credits resulting from unearned premiums would have provided coverage beyond the date of the loss.

Separate appeals from judgments of the Superior Court for Yakima County, No. 42752, Dolph Barnett, J., entered May 6, 1960 and September 23, 1960. Affirmed on first appeal; reversed and remanded on second appeal.

Action by the vendor and vendee of certain premises to recover on a fire insurance policy. Defendant appeals from a judgment in favor of the plaintiff vendor. Plaintiff vendee appeals from a judgment of dismissal.

Savage, Nuxoll & Brennan, for appellants Grange Insurance Association et al.

Stephen E. Chaffee and Kenneth C. Hawkins, for respondent and appellant Weitman.

OTT, J. -

S. A. Weitman sold his feed mill and equipment to his son, Harold N. Weitman (hereinafter referred to as Harold), upon an executory contract which provided, inter alia, that Harold would maintain fire insurance upon the premises and contents until the contract was paid in full. S. A. Weitman had previously insured this property through the office of Ralph S. Owen (hereinafter referred to as Owen), an agent and director of the Grange Insurance Association (hereinafter referred to as the Grange). Harold continued to carry the insurance coverage with the Grange, through Owen, with a loss payable clause to S. A. Weitman.

750 WEITMAN v. GRANGE INS. ASS'N. [59 Wn. (2d)

The policy, commencing April 28, 1952, and expiring April 28, 1957, was delivered to S. A. Weitman.

When S. A. Weitman told Owen of the sale of the premises to his son, he agreed to pay the policy premiums, if Harold failed to do so. Owen thereupon promised to notify him if anything happened which would, in any way, affect the coverage. On December 1, 1953, S. A. Weitman was notified that the premium payment was in arrears, and it was promptly paid. Thereafter, S. A. Weitman was notified of a suspension of the policy due to electrical hazards. The insured corrected the matter, and the insurance coverage was reinstated after eighteen days.

November 17, 1956, S. A. Weitman was notified of a suspension and the policy was reinstated December 7, 1956, upon Harold's payment of a 6-months premium. He was notified that any overpayment would be returned at the termination of the contract or applied upon the renewal premium.

The bylaws of the Grange, which were incorporated in the policy as a part of the contract, provided that, at the end of each five-year term, a dividend, if earned, would be disbursed to the policyholder.

Notices of expiration and renewal are mailed to the Grange's policyholders direct from the home office at Seattle thirty days prior to the expiration dates of the policies. In April, 1957, Jack J. Haun, secretary-treasurer and manager of the Grange, in the home office, determined that the policy should not be renewed, and intercepted the notice addressed to the insured, after it had been prepared. As a consequence, no customary notice of expiration or of cancellation (as provided by the policy) was sent to either S. A. or Harold Weitman. Nor did Owen give notice as he had promised S. A. Weitman. No insurance coverage was sought elsewhere by Harold, although coverage was available through another company.

July 13, 1957, the mill and its contents were destroyed by fire caused by an overheated bearing. At that time, the unpaid balance owing to S. A. Weitman on the contract of

Apr. 1962] WEITMAN v. GRANGE INS. ASS'N. 751

sale was $10,166.98. The amount of the Grange insurance coverage was $18,000.

Harold and S. A. Weitman commenced this action against the Grange and Owen to recover the amount of the insurance, alleging that the policy of insurance was in full force and effect at the time of the fire, and that the doctrine of promissory estoppel applied as to the Grange and Owen.

The cause was tried to a jury. At the close of the evidence, defendants challenged the sufficiency of plaintiffs' evidence to establish that the policy of insurance was in force at the time of the fire. The court sustained the challenge, and submitted to the jury the factual determinations relative to the remaining issue of promissory estoppel. S. A. Weitman recovered a verdict in the sum of $10,166, and Harold was denied recovery of the excess.

From the judgment entered upon the verdict, the Grange and Owen have appealed. Harold Weitman has appealed from the judgment dismissing his claims of action.

We will first discuss the appeal of the Grange and Owen.

Appellants assign error to the court's refusal to grant a nonsuit at the close of respondent's evidence, and to its failure to direct the jury to find for the appellants, contending that the evidence was insufficient to establish the doctrine of promissory estoppel.

[1] In Hill v. Corbett, 33 Wn. (2d) 219, 204 P. (2d) 845 (1949), the essential elements of promissory estoppel are set out as follows:

". . . (1) a promise which (2) the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise."

Appellants designate the fourth element as the "crucial issue": Did the evidence establish that S. A. Weitman was justified in relying upon the promises of Owen?

In this regard, appellants assert that S. A. Weitman had possession of the policy, which stated the expiration date, and that, since this fact was known to him, he could not

752 WEITMAN v. GRANGE INS. ASS'N. [59 Wn. (2d)

justifiably rely upon the representations of Owen that he would be further advised of the expiration date.

[2] The rule with reference to whether a person has been influenced, to his damage, by the conduct of another, and whether he can justifiably rely upon such conduct so that the doctrine of promissory estoppel applies, is as follows:

"`"The party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the state of facts, but was also destitute of any convenient and available means of acquiring such knowledge; and that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel." 11 Am. & Eng. Ency. Law (2d ed.), p. 434.' (Italics ours.)" Geoghegan v. Dever, 30 Wn. (2d) 877, 893, 194 P. (2d) 397 (1948), quoting with approval from Wechner v. Dorchester, 83 Wash. 118, 122, 145 Pac. 197 (1915).

The insurance policy contained the expiration date of April 28, 1957, and this fact was known to both the insured and the insurer. The court held, however, that the doctrine of promissory estoppel applied. The court instructed the jury that the Grange was estopped to assert that the expiration date terminated the policy, if they found, from the evidence, that, subsequent to the issuance of the policy, Owen made promises, upon which the insured could justifiably rely, that S. A. Weitman would be notified if the coverage of the policy was jeopardized in any manner.

[3] The evidence, if believed by the jury, established (1) that the insured would receive a thirty-day written notice of expiration of the policy from the Grange, or a ten-day written notice if the policy was to be cancelled, (2) that Owen would notify S. A. Weitman of any matter affecting his insurance coverage, (3) that, the premium having been paid for the full term of five years, and coverage having been suspended for a total of approximately forty days, the term of the policy would, ipso facto, be extended for forty days beyond April 28, 1957, or the unearned premiums returned, (4) that the overpayment at the time of

Apr. 1962] WEITMAN v. GRANGE INS. ASS'N. 753

the reinstatement on December 7, 1956, would be applied on the renewal premium and the policy thereby kept in force beyond April 28, 1957, or the overpayment returned on that date, and (5) that, on the alleged expiration date, neither the overpayment nor the refund for unearned premiums was returned to the insured.

The Grange had the option, on April 28, 1957, to return the unearned premiums, thereby terminating its contractual relationship with the insured, or to apply these credit items toward the payment of the premium on an extension of the existing contract, or to apply the amount toward the payment of the premium on a new contract. Since the Grange had an option which it could exercise, the insured did not have the means of acquiring knowledge relative to the expiration date until the Grange gave notice of its election in this regard. The Grange having failed to give notice of its election, S. A. Weitman, acting as a reasonably prudent person, could assume that, since the amount of the credits was not returned, the Grange would apply the credits toward an extension of the existing policy, or to a renewal premium, as the endorsement on the policy provided. That S. A. Weitman relied thereon was determined by the jury, and the jury's verdict is supported by the evidence.

[4] Appellants further assert that the evidence to establish the second and third elements of the doctrine of promissory estoppel is in doubt and unreasonable. The jury determined the factual issue relative to the second and third elements adversely to appellants.

Our examination of the record discloses that there was sufficient evidence to take the case to the jury upon all of the elements of the doctrine of promissory estoppel. We find no merit in appellants' first contention.

Appellants next assign error to the giving of instruction No. 11, and to the court's refusal to give their proposed instructions Nos. 36, 39, and 40, relating to the meaning of the term "justifiably rely." The court, by its instruction No. 11, defined the term as follows:

"You are instructed that a person is entitled to `justifiably rely' on the promise of another to notify him of the status

754 WEITMAN v. GRANGE INS. ASS'N. [59 Wn. (2d)

or termination of a policy of insurance, only if a reasonably prudent person similarly situated, with the same knowledge or means of knowledge, would rely upon such promise."

Appellants' exception to instruction No. 11 was based upon the court's failure to supplement the instruction in certain particulars. The only factual issue involved was whether S. A. Weitman could justifiably rely upon the promise of Owen to notify him of any change in the status of the insurance policy which would be detrimental to him. The supplemental elements requested by appellants were not germane to this issue.

[5] An examination of the three proposed instructions discloses that they incorrectly apply the doctrine of promissory estoppel to the facts in the instant case, in that they do not include the subsequent acts of the insurer which, if believed by the jury, would estop the insurer from asserting that the expiration date in the policy was controlling. These acts relate to disposition of the credits, which are discussed heretofore and which are material in determining whether S. A. Weitman had equal knowledge as to the date the insurer would elect to terminate or renew the policy.

The court did not err in giving instruction No. 11 and in refusing to give the proposed instructions.