This is an action to recover on an accident policy issued by the appellant to one Frank J. MeKune, 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.
*26The 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 Mc-Kune 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 *27instalment 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 instalment 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 Mc-Kune’s wages for December was forwarded by the railroad company to the San Francisco office of the defendant and received there on January 20, 1913. Thereafter the defendant company included the name of McKune on the paymaster’s return list for the month of January, 1913. Said list was made up at the San Francisco office of the defendant and sent to the railroad company two or three days later. A copy of the particular sheet of the January billing on which the name of McKune appeared is attached to and made a part of the stipulation of facts. A penciled memorandum appears on said sheet opposite the name of McKune, as follows: “Not enough time in.” On November 20, 1912, McKune executed in favor of one Land a pay order in the sum of $50 at Glenns Ferry for a watch purchased from Land, and the pay order provided for the deduction of $20 from the November, 1912, wages of McKune, $20 from the December, 1912, wages, and $10 from the January, 1913, wages. Said order was executed in duplicate and one copy thereof transmitted to Stevenson, superintendent of the Idaho division of said railroad company, and by him transmitted to the paymaster of the O. S. L. Railroad Company at Salt Lake. McKune resided at the railroad company’s hotel and gave further additional pay orders, payable out of his January, 1913, wages, for the sum of $50, and he was also liable for a hospital fee in the sum *28of fifty cents. The railroad company made disposition of McKune’s January wages on or about the 15th of February by disbursing the same as follows:
1 hotel pay order..........................$30.00
1 watch pay order......................... 10.00
1 hospital fee..............................50
Balance paid McKune................... 10.97
Total earned.....................■.......$51.47
In making payment of the said sum of $10.97, to McKune, the usual form of check of the railroad company was employed and contained no statement' or information as to the amount earned by said McKune nor as to what pay orders had been honored. The defendant had no knowledge that the second instalment of premium had not been deducted from the January wages of McKune until the receipt of exhibit “E” on February 20, 1913. There had been stamped the word “lapsed” on said exhibit “E” opposite the name of the insured and his account was marked as “lapsed” on the records of the defendant company. On the same date, to wit, February 20, the defendant mailed to McKune at Shoshone, Idaho, a certain notice, a copy of which is attached to the stipulation of facts and made a part thereof. Said “lapse” notice was not received by the insured during his lifetime, but was received by the plaintiff, Rose M^une, after her son’s death.
McKune died on the 24th of February from injuries received on that day by reason of being caught between cars and crushed while making a coupling. His death was caused solely by injuries effected through accidental means and was occasioned in a manner covered by the terms of the policy. Rose McKune, as required by the terms of said- policy, gave notice and filed proof of the death of McKune. The death notice was received by the defendant company at its San Francisco office March 3, 1913, and this was the first notice or knowledge the defendant company had of the injury and death of McKune. Deceased’s name was included by the defendant company on its paymaster’s return list for the *29month of February, 1913, and this list was made up in the San Francisco office of the defendant on or about the 20th of February, 1913. The sum of $30 was deducted by the railroad company from the wages of said McKune earned by him in the month of February, 1913, and forwarded by the railroad company, together with the paymaster’s return list or sheet, to the San Francisco office of the defendant company and was received there on or about March 20, 1913. The defendant company had no knowledge as to whether or not any deduction had been made by the railroad company from the February wages of McKune until the receipt of said remittance together with exhibit “IT.”
Said $30 upon its receipt at the San Francisco office of the defendant was placed in the “Suspense Account” and the claim was then taken up with the main office of the defendant at Chicago, Illinois, and on April 29, 1913, the defendant’s check for $30 was mailed from t]ie San Francisco office of the defendant to the plaintiff and was received by h.-e. She declined to accept the $30, and returned the same to the defendant company. The defendant company is ready and willing to return said $30 to whomsoever may be entitled to it. In all of its actions, in connection with the policy of said McKune, the defendant company has pursued the same course it has always pursued under similar circumstances in connection with similar policies held with it by other employees of the Oregon Short Line Railway Company.
It is also stipulated that sometimes wages earned by “extra” freight brakemen, such as ¡McKune, whose duties were similar to those of McKune, earned in the last day or two of a month, would be included in the wages of the employee the next succeeding month. It is further stipulated that in this particular ease no wages earned by McKune in January were carried over to February, and no wages earned in December were carried over to January.
At the end of each run the conductor in charge of the train on which McKune was working would make up a slip showing the amount earned on the run, and this slip was in every instance signed by McKune and forwarded by the conductor *30to the proper official of the railroad company. It was the custom of the company to honor watch and board orders and( hospital fees in preference to insurance fees, where the sum earned was insufficient to pay all off.
From the foregoing facts the trial court made its finding of facts, conclusions of law and entered judgment in favor of the plaintiff for $1,000.
The main contention of the appellant is that the finding of facts is not sustained by the evidence, and for that reason the judgment is not based upon the agreed facts but upon the facts as found by the court, and counsel proceed in their printed brief to criticise the findings made by the court and contend that certain of such findings are not supported by the evidence.
It must be conceded that some of the findings made by the court were not necessary under the facts of the case, and it was not necessary for the court to make any findings of its own, as it might have adopted the facts as stipulated as the finding of the court. The reason why finding of facts is not necessary in cases of this kind is because the stipulation of facts takes the place of the court’s findings, and if on the stipulated facts the court has made findings that were not necessary and not supported by the evidence, that will not be permitted to vitiate the judgment. The judgment must be tested by the agreed statement of facts and not by findings of fact made by the court in such a case. The stipulated facts are before this court, and if the law applicable to such facts warranted the judgment entered by the trial court, this court ought not, and will not, reverse that judgment simply because the court has found some things as facts that' were not stipulated.
It was said in McMenomy v. White, 115 Cal. 339, 47 Pac. 109, as follows: “The objections 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 the facts, no findings were necessary, the only question being as to what was the law applicable to those facts.-”
In the ease before us the question is: What is the law ap*31plieable to the stipulated facts, regardless of the finding of facts made by the court? We are satisfied that the stipulated facts support the judgment.
(February 16, 1916.) Waiver or Payment or Premium on Insurance Policy — Forfeiture— Pleading of Waiver — Waiver Raised in Rebuttal. 1. Where au insurance company issues a poliey upon which the premium is payable in four instalments, the payment of the first, second, third and fourth instalment to continue the poliey in force for respective periods of two, two, three and five months, all such periods to be computed successively from the date of the poliey, whieh was November 8, 1912, and credit' is given the insured for the first' payment at the time of the issuance of the poliey, and an instalment of the premium was received by the insurance company only on January 20, 1913, and upon February 20, 1913, notice was given by the company that the second instalment should be paid, and on February 24th the insured was killed, which fact was known to the company on March 3d, and the company never recalled the demand made for payment of the second instalment and received payment out of wages due the insured on March 20th and retained said money until April 29th. Held, that the payment made on January 20th continued the poliey in force for two months from its date, and that the conduct of the company amounted to a waiver of the conditions of the policy wherein forfeiture is declared as a penalty for nonpayment of instalments of premium.It is therefore not necessary to send the case back to the trial court to change in any manner its finding of facts. As bearing upon some of the questions involved in this case, see Continental Casualty Co. v. Jennings, 45 Tex. Civ. 14, 99 S. W. 423; Loftis v. Pacific Mutual Life Ins. Co., 38 Utah, 532, 114 Pac. 134.
Finding no reversible error in the record, the judgment must be affirmed, and it is so ordered, with costs in favor of the respondent.
Morgan, J., concurs. Budge, J., took no part in the decision of this case.